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EXHIBIT 2.1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
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In re:
: Chapter 11
HOMEPLACE STORES, INC.,
HOMEPLACE STORES TWO, INC., : Case No. 98-8 (PJW)
HOMEPLACE MANAGEMENT, INC.,
AND HOMEPLACE HOLDINGS, INC., :
Jointly Administered
Debtors. :
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FIRST AMENDED JOINT PLAN OF REORGANIZATION OF THE HOMEPLACE
GROUP UNDER CHAPTER 11 OF THE BANKRUPTCY CODE, AS SUPPLEMENTED
MILBANK TWEED HADLEY & McCLOY LLP
1 Chase Manhattan Plaza
New York, New York 10005
(212) 530-5000
- and -
YOUNG CONAWAY STARGATT & TAYLOR, LLP
11th Floor, Rodney Square North
P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6600
Attorneys for HomePlace Stores, Inc., et al.,
Debtors and Debtors-in-Possession
Dated: April 28, 1999
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Table of Contents
Page
SECTION I DEFINITIONS......................................................1
1.1 "Administrative Bar Date".............................................1
1.2 "Administrative Expense Claim"........................................1
1.3 "Additional Quarterly Distribution"...................................1
1.4 "Affiliate"...........................................................1
1.5 "Allowed".............................................................1
1.6 "Amended Bylaws"......................................................2
1.7 "Amended Certificate of Incorporation"................................2
1.8 "Assumption Schedule".................................................2
1.9 "Ballot"..............................................................2
1.10 "BankBoston DIP Revolving Credit Facility"............................2
1.11 "BankBoston DIP Term Loan Agreement"..................................3
1.12 "BankBoston DIP Facility Claims"......................................3
1.13 "Bankruptcy Code".....................................................3
1.14 "Bankruptcy Court"....................................................3
1.15 "Bankruptcy Rules"....................................................3
1.16 "Business Day"........................................................3
1.17 "Cash"................................................................3
1.18 "Cash Election Commitment Amount".....................................3
1.19 "Cash Election Deficiency Event"......................................3
1.20 "Cash Election Deficiency Amount".....................................3
1.21 "Cash Election Offer".................................................4
1.22 "Cash Election Offer Price"...........................................4
1.23 "Cash Election Transactions"..........................................4
1.24 "Cash Investment Yield"...............................................4
1.25 "Causes of Action"....................................................4
1.26 "Claim"...............................................................4
1.27 "Claims Agent"........................................................4
1.28 "Claims Procedure Order"..............................................4
1.29 "Class"...............................................................4
1.30 "Class I Directors"...................................................4
1.31 "Class II Directors"..................................................5
1.32 "Class 7 Equity Interests"............................................5
1.33 "Collateral"..........................................................5
1.34 "Combined Company"....................................................5
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1.35 "Confirmation Date"...................................................5
1.36 "Confirmation Hearing"................................................5
1.37 "Confirmation Order"..................................................5
1.38 "Convenience Claim"...................................................5
1.39 "Creditor Distributable Shares".......................................5
1.40 "Creditors' Committee"................................................5
1.41 "Cure"................................................................5
1.42 "Debtors".............................................................6
1.43 "Debtors-in-Possession"...............................................6
1.44 "Disallowed Claim"....................................................6
1.45 "Disallowed Equity Interest"..........................................6
1.46 "Disclosure Statement"................................................6
1.47 "Disclosure Statement Approval Date"..................................6
1.48 "Disclosure Statement Approval Order".................................6
1.49 "Disputed Claim"......................................................7
1.50 "Disputed Equity Interest"............................................7
1.51 "Disputed Reserve"....................................................7
1.52 "Distributable Shares"................................................7
1.53 "Distributed Shares"..................................................7
1.54 "Distributions".......................................................7
1.55 "Effective Date"......................................................7
1.56 "Entity"..............................................................7
1.57 "Equity Interest".....................................................7
1.58 "Equity Shares".......................................................8
1.59 "Estate"..............................................................8
1.60 "Estimated Disputed Unsecured Claims".................................8
1.61 "Excess Cash Election Cash Payment Percentage"........................8
1.62 "Excess Cash Election Event"..........................................8
1.63 "Excess Cash Election Portion"........................................8
1.64 "Excess Cash Election Stock Distribution Percentage"..................8
1.65 "Exit Facility".......................................................8
1.66 "Exit Facility Commitment Letter".....................................8
1.67 "Final Order".........................................................8
1.68 "HomePlace Group".....................................................9
1.69 "HomePlace Group DIP Employee Retention Plan".........................9
1.70 "HomePlace Holdings"..................................................9
1.71 "HomePlace Management"................................................9
1.72 "HomePlace Management Common Stock"...................................9
1.73 "HomePlace Stores"....................................................9
1.74 "HomePlace Stores Common Stock".......................................9
1.75 "HomePlace Stores Two"................................................9
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1.76 "HomePlace Stores Two Common Stock"...................................9
1.77 "HomePlace/Waccamaw Merger"or "Merger"................................9
1.78 "Initial Distribution Date"...........................................9
1.79 "Liabilities"........................................................10
1.80 "Lien"...............................................................10
1.81 "Maxus"..............................................................10
1.82 "Maxus/National City Financing Transactions".........................10
1.83 "Maxus Secured Claims"...............................................10
1.84 "Maxus Deficiency Claim".............................................10
1.85 "Merger Agreement"...................................................10
1.86 "Merger Effective Time"..............................................11
1.87 "National City"......................................................11
1.88 "National City Secured Claims".......................................11
1.89 "National City Deficiency Claim".....................................11
1.90 "New Common Stock"...................................................11
1.91 "New HomePlace"......................................................11
1.92 "New Preferred Warrants".............................................11
1.93 "New Waccamaw Warrants"..............................................11
1.94 "New Warrants".......................................................11
1.95 "Non-Tendered Claim".................................................12
1.96 "Non-Tendered Claim Portion".........................................12
1.97 "Offered Shares".....................................................12
1.98 "Old Capital Stock"..................................................12
1.99 "Old Class A Common Stock"...........................................12
1.100 "Old Class B Common Stock"...........................................12
1.101 "Old Class C Common Stock"...........................................12
1.102 "Old Class D Common Stock"...........................................12
1.103 "Old Class 1 Serial Preferred Stock".................................12
1.104 "Old Class 2 Serial Preferred Stock".................................12
1.105 "Old Common Stock"...................................................12
1.106 "Old Preferred Stock"................................................13
1.107 "Old Series A Preferred Stock".......................................13
1.108 "Old Series B Preferred Stock".......................................13
1.109 "Old Series C Preferred Stock".......................................13
1.110 "Old Stock Options"..................................................13
1.111 "Operative Agreements"...............................................13
1.112 "Other Secured Claims"...............................................13
1.113 "Person".............................................................13
1.114 "Petition Date"......................................................13
1.115 "Plan"...............................................................13
1.116 "Plan Supplement"....................................................13
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1.117 "Plan Transactions"..................................................13
1.118 "Potential Rejection Claim"..........................................14
1.119 "Potential Rejection Claimant".......................................14
1.120 "Priority Non-Tax Claim".............................................14
1.121 "Priority Tax Claim".................................................14
1.122 "Professional Fees"..................................................14
1.123 "Quarterly Distribution Date"........................................14
1.124 "Ratable Proportion".................................................14
1.125 "Record Date"........................................................15
1.126 "Reincorporation Merger".............................................15
1.127 "Reincorporation Merger Agreement"...................................15
1.128 "Reinstated" or "Reinstatement"......................................15
1.129 "Reorganization Cases"...............................................15
1.130 "Reorganized Debtors"................................................15
1.131 "Reorganization Trust"...............................................16
1.132 "Reorganization Trust Agreement".....................................16
1.133 "Reorganization Trustee".............................................16
1.134 "Representative Creditors"...........................................16
1.135 "Reserved Shares"....................................................16
1.136 "Restructuring Note".................................................16
1.137 "Restructuring Treatment"............................................16
1.138 "Schedules"..........................................................16
1.139 "Secured Claim"......................................................17
1.140 "Securities Act".....................................................17
1.141 "Stock Distribution".................................................17
1.142 "Subsidiaries".......................................................17
1.143 "Subsidiary Common Stock"............................................17
1.144 "Subscription Amount"................................................17
1.145 "Subscription Offer".................................................17
1.146 "Subsidiaries Amended Bylaws"........................................17
1.147 "Subsidiaries Amended Certificates of Incorporation".................17
1.148 "Tendered Amount"....................................................17
1.149 "Tendered Cash Amount"...............................................18
1.150 "Tendered Claim".....................................................18
1.151 "Tendered Claim Portion".............................................18
1.152 "Tendering Claim Holders"............................................18
1.153 "Unofficial Equity Committee"........................................18
1.154 "Unsecured Claim"....................................................18
1.155 "Unsecured Deficiency Claim".........................................18
1.156 "United States Trustee"..............................................18
1.157 "Voting Deadline"....................................................18
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1.158 "Waccamaw"...........................................................19
1.159 "Waccamaw Shareholder"...............................................19
1.160 "Waccamaw Shareholder Exclusive Right Shares"........................19
1.161 "Waccamaw Shareholder Letter"........................................19
1.162 "Waccamaw Shareholder Subscription Agreement"........................19
1.163 "Waccamaw Shareholder Mandatory Subscription Commitment".............19
SECTION II INTERPRETATION; APPLICATION OF DEFINITIONS, RULES OF
CONSTRUCTION AND COMPUTATION OF TIME..........................19
SECTION III PAYMENT OF ADMINISTRATIVE EXPENSE CLAIMS, PRIORITY TAX CLAIMS
AND OTHER UNCLASSIFIED CLAIMS.................................20
3.1 Administrative Expense Claims........................................20
3.2 Payment of BankBoston DIP Facility Claims............................20
3.3 Priority Tax Claims..................................................20
SECTION IV CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS...................21
4.1 Summary..............................................................21
4.2 Classification and Treatment:........................................22
4.2.1 Class 1: Priority Non-Tax Claims....................................22
4.2.2 Class 2: Other Secured Claims.......................................22
4.2.3 Class 3: National City Secured Claims...............................22
4.2.4 Class 4: Maxus Secured Claims.......................................22
4.2.5 Class 5: Unsecured Claims...........................................22
4.2.6 Class 6: Convenience Claims.........................................23
4.2.7 Class 7A: Old Series A Preferred Stock...............................23
4.2.8 Class 7B: Old Series B Preferred Stock...............................23
4.2.9 Class 7C: Old Series C Preferred Stock...............................23
4.2.10 Class 8: Old Common Stock...........................................23
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4.2.11 Class 9: Other Equity Interests.....................................23
4.2.12 Class 10: Subsidiary Common Stock....................................23
SECTION V TREATMENT OF CLAIMS AND EQUITY INTERESTS UNDER THE PLAN.........24
5.1 Designation of Treatment.............................................24
5.2 Claims Against and Equity Interests in the Debtors...................24
5.2.1 Class 1: Priority Non-Tax Claims....................................24
5.2.2 Class 2: Other Secured Claims.......................................24
5.2.3 Class 3: National City Secured Claims...............................25
5.2.4 Class 4: Maxus Secured Claims.......................................25
5.2.5 Class 5: Unsecured Claims...........................................25
5.2.6 Class 6: Convenience Class Claims...................................26
5.2.7 Class 7A: Old Series A Preferred Stock...............................26
5.2.8 Class 7B: Old Series B Preferred Stock...............................26
5.2.9 Class 7C: Old Series C Preferred Stock...............................27
5.2.10 Class 8: Old Common Stock...........................................27
5.2.11 Class 9: Other Equity Interests.....................................27
5.2.12 Class 10: Subsidiary Common Stock....................................27
SECTION VI PROVISIONS REGARDING NEW COMMON STOCK AND NEW WARRANTS
DISTRIBUTED PURSUANT TO THE PLAN..............................28
6.1 New Common Stock.....................................................28
6.1.1 Authorization........................................................28
6.1.2 Par Value............................................................28
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6.1.3 Rights...............................................................28
6.1.4 Management Options...................................................28
6.2 New Warrants.........................................................29
6.2.1 New Preferred Warrants...............................................29
6.2.2 New Waccamaw Warrants................................................29
SECTION VII IMPAIRED AND UNIMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS
UNDER THE PLAN; ACCEPTANCE OR REJECTION OF THE PLAN...........30
7.1 Holders of Claims and Equity Interests Entitled to Vote..............30
7.2 Acceptance by Unimpaired Classes.....................................30
7.3 Elimination of Classes...............................................30
7.4 Non-consensual Confirmation..........................................31
7.5 Revocation of the Plan...............................................31
SECTION VIII MEANS OF IMPLEMENTATION OF THE PLAN.............................31
8.1 Transactions on the Effective Date...................................31
8.2 The Cash Election Offer for Holders of Unsecured Claims..............33
8.2.1 The Election by Holders of Unsecured Claims..........................33
8.2.2 Payment of Tendered Claims...........................................33
8.2.3 Allocation of Cash Election Proceeds In the Event of an Excess
Cash Election Event................................................34
8.2.4 Mandatory Pro Rata Cash Distribution in the Event of a
Cash Election Deficiency Event.....................................34
8.2.5 Treatment of Tendering Claim Holders Holding Disputed Claims.........34
8.2.6 Potential Rejection Claimants Ability to Participate in the
Cash Election Offer................................................34
8.3 Funding of Cash Election.............................................36
8.4 The Subscription Offer...............................................36
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8.4.1 The Subscription Commitment by Waccamaw Shareholder for
the Purchase of Waccamaw Exclusive Right Shares....................36
8.4.2 The Issuance of Offered Shares.......................................36
8.4.3 Waccamaw Shareholder Not Entitled to Receive Subsequent
Distributions on Account of Ownership of Offered Shares of
New Common Stock...................................................36
8.5 Substantive Consolidation............................................37
8.6 HomePlace/Waccamaw Merger............................................37
8.7 The Reincorporation Merger...........................................37
8.8 The Reorganized Debtors' Obligations Under the Plan..................38
8.9 Continuation of Business.............................................38
8.10 Charter and Bylaws...................................................38
8.11 Cancellation of Equity Interests.....................................39
8.12 The Board of Directors of the Reorganized Debtors....................39
8.13 Operations of Debtors Between Confirmation and the Effective Date....39
8.14 Exclusivity Period...................................................40
8.15 Revesting of Assets..................................................40
8.16 Creditors' Committee.................................................40
8.17 Effectuating Documents; Further Transactions.........................40
8.18 Assumptions of Liabilities...........................................40
8.19 Distributions under this Plan........................................41
8.20 Substantial Consummation.............................................41
8.21 Preservation of Causes of Action; Defenses...........................41
8.22 Cancellation of Existing Securities..................................42
8.23 Representative Creditors.............................................42
8.23.1 Powers of the Representative Creditors...............................42
8.23.2 Quorum; Meetings; Votes..............................................42
8.23.3 Resignations; Successor Representative...............................43
8.23.4 Exculpation..........................................................43
8.23.5 Combined Company Not Responsible for Expenses of
Representative Creditors...........................................43
SECTION IX DISTRIBUTIONS UNDER THE PLAN....................................44
9.1 Date of Distributions................................................44
9.2 Delivery of Distributions............................................44
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9.3 Record Date for Distributions........................................45
9.3.1 Record Date for Equity Interests.....................................45
9.3.2 Record Date for Holders of Claims....................................45
9.4 Time Bar to Cash Payments............................................45
9.5 Manner of Cash Payments Under the Plan...............................46
9.6 Reorganization Trustee...............................................46
9.7 Disputed Reserves....................................................46
9.8 Limitations upon Funding of Disputed Reserves........................47
9.9 Tax Requirements for Income Generated by Disputed Reserves...........47
9.10 Estimation of Claims.................................................47
9.11 Distributions After Initial Distribution Date........................48
9.12 Fractional Shares....................................................48
9.13 Fractional Cents.....................................................48
9.14 De Minimis Distributions.............................................48
9.15 Interest on Claims...................................................48
9.16 No Distribution in Excess of Allowed Amount of Claim.................49
9.17 Ordinary Course Liabilities..........................................49
9.18 Setoffs..............................................................49
9.19 Payment of Taxes on Distributions Received Pursuant to Plan..........49
SECTION X DISPUTED CLAIMS UNDER THE PLAN..................................50
10.1 Objection Deadline..................................................50
10.2 Prosecution of Objections after the Effective Date..................50
10.3 No Distributions Pending Allowance..................................50
10.4 Withholding of Allocated Distributions..............................50
10.5 Initial Distribution When a Disputed Claim Becomes an
Allowed Claim.....................................................51
10.6 Additional Quarterly Distributions on Account of Previously
Allowed Claims....................................................51
SECTION XI THE REORGANIZATION TRUST; RIGHTS AND OBLIGATIONS OF THE
REORGANIZATION TRUSTEE........................................52
11.1 Creation of Reorganization Trust....................................52
11.2 Purposes of the Reorganization Trust................................52
11.3 Exculpation.........................................................52
11.4 Powers of the Reorganization Trustee................................53
11.5 Duties of the Reorganization Trustee................................53
11.6 Investment Guidelines for Reorganization Trustee....................54
11.7 The Reorganization Trustee..........................................54
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11.8 Combined Company Responsible for Expenses of
Reorganization Trustee............................................54
11.9 General Provisions..................................................54
SECTION XII EXECUTORY CONTRACTS AND UNEXPIRED LEASES UNDER THIS PLAN........55
12.1 All Executory Contracts and Unexpired Leases Rejected if
Not Listed on Assumption Schedule.................................55
12.2 Assumed Executory Contracts and Unexpired Leases....................55
12.3 Payments Related to Assumption of Executory Contracts and
Unexpired Leases..................................................56
12.4 Bar Date for Rejection Damages......................................56
12.5 Assignment of Executory Contracts and Unexpired Leases to
Combined Company..................................................56
12.6 Compensation and Benefit Programs...................................57
12.7 Retiree Benefits....................................................57
12.8 Treatment of Maxus/National City Financing Transactions
If Determined to be Unexpired Leases..............................58
SECTION XIII CONDITIONS PRECEDENT TO THE CONFIRMATION DATE AND THE
EFFECTIVE DATE.................................................59
13.1 Conditions Precedent to the Confirmation of the Plan................59
13.2 Conditions Precedent to the Effective Date of the Plan..............61
13.3 Waiver of Conditions Precedent......................................62
SECTION XIV EFFECT OF CONFIRMATION..........................................63
14.1 Reorganized Debtors' Authority......................................63
14.2 Vesting and Liens...................................................63
14.3 Discharge of the Debtors............................................63
14.4 Term of Injunctions or Stays........................................65
SECTION XV RELEASES, INJUNCTION AND WAIVER OF CLAIMS.......................65
15.1 Release of the Debtors, Debtors-in-Possession and
Reorganized Debtors...............................................65
15.2 Release of the Released Parties.....................................65
15.3 Injunction..........................................................65
15.4 Avoidance and Recovery Actions......................................66
15.5 Releases of Officers, Directors and Employees.......................66
SECTION XVI RETENTION OF JURISDICTION.......................................66
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16.1 Retention of Jurisdiction...........................................66
16.2 Modification of the Plan............................................69
SECTION XVII BAR DATE FOR NON-ORDINARY COURSE ADMINISTRATIVE
EXPENSE CLAIMS................................................69
17.1 Establishing Deadline By Which Non-Ordinary Course Administrative
Expense Claims Must Be Filed Against the Debtors..................69
17.2 Form for Proofs of Administrative Expense Claim.....................70
17.3 Consequences for Failing Timely to File Proof of Administrative
Expense Claims....................................................70
SECTION XVIII MISCELLANEOUS PROVISIONS........................................71
18.1 Payment of Statutory Fees...........................................71
18.2 Severability of Plan Provisions.....................................71
18.3 Governing Law.......................................................71
18.4 Notices.............................................................71
18.5 Further Documents and Action........................................73
18.6 Plan Supplement.....................................................73
18.7 Plan Controls.......................................................74
18.8 Reservation of Rights...............................................74
18.9 Tax Reporting and Compliance........................................75
18.10 Waccamaw as Party-in-Interest.......................................75
18.11 Fees and Expenses of Counsel for Unofficial Equity Committee........75
18.12 Binding Effect......................................................76
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FIRST AMENDED JOINT PLAN OF REORGANIZATION OF THE
HOMEPLACE GROUP UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
HomePlace Stores, Inc., HomePlace Stores Two, Inc., HomePlace
Management, Inc., and HomePlace Holdings, Inc., the Debtors and
Debtors-in-Possession in the above-captioned Reorganization Cases, propose the
following First Amended Joint Plan of Reorganization pursuant to the provisions
of Chapter 11 of the Bankruptcy Code:
SECTION I
DEFINITIONS
The following terms, when used in this Plan or any subsequent
amendments or modifications thereof, shall have the meanings defined below:
1.1 "Administrative Bar Date" means August 16, 1999.
1.2 "Administrative Expense Claim" means any right to payment
constituting a cost or expense of administration of the Reorganization Cases
Allowed under sections 503(b) and 507(a)(1) of the Bankruptcy Code, including
(a) any actual and necessary costs and expenses of preserving the Estates of the
Debtors, (b) any actual and necessary costs and expenses of operating the
businesses of the Debtors, (c) any indebtedness or obligations incurred or
assumed by the Debtors in the ordinary course of business in connection with the
conduct of their business, (d) claims for reclamation Allowed in accordance with
section 546(c)(2) of the Bankruptcy Code and the Order Authorizing HomePlace
Group's Reconciliation Procedure for Allowing Reclamation Claims, dated May 6,
1998, (e) any allowances of compensation and reimbursement of expenses to the
extent Allowed by Final Order under sections 330, 331 or 503 of the Bankruptcy
Code, whether fixed before or after the Effective Date, and (f) any fees or
charges assessed against the Estates of the Debtors under section 1930, Chapter
123, title 28, United States Code, including post-Confirmation Date and
post-Effective Date fees and charges.
1.3 "Additional Quarterly Distribution" means a Distribution on a
Quarterly Distribution Date to each holder of an Allowed Claim or Allowed Equity
Interest, as the case may be, from the Disputed Reserve for such holder's Class
of Claims or Equity Interests.
1.4 "Affiliate" has the meaning ascribed to such term in section 101(2)
of the Bankruptcy Code.
1.5 "Allowed" means, with reference to any Claim (including any
Administrative Expense Claim) or Equity Interest, (a) any Claim against or
Equity Interest in the Debtors, proof of
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which was filed within the applicable period of limitation fixed by the
Bankruptcy Court in accordance with Rule 3003(c)(3) of the Bankruptcy Rules (i)
as to which no objection to the allowance thereof has been interposed within the
applicable period of limitation fixed by this Plan, the Bankruptcy Code, the
Bankruptcy Rules or a Final Order, (ii) as to which no action has been commenced
to avoid such Claim or Equity Interest within the applicable period of
limitation fixed by this Plan, (iii) as to which an objection has been
interposed, to the extent such Claim or Equity Interest has been allowed
(whether in whole or in part) by a Final Order, or (iv) that has been resolved
pursuant to the Claims Procedures Order, (b) if no proof of Claim was so filed,
any Claim against in the Debtors which has been listed by the Debtors in their
respective Schedules, as such Schedules may be amended from time to time in
accordance with Rule 1009 of the Bankruptcy Rules, as liquidated in amount and
not disputed or contingent (or which proof of Claim has been withdrawn or
Disallowed), (c) if no proof of Equity Interest was so filed, any Equity
Interest listed in the consolidated stockholders list maintained by HomePlace
Holdings as of the Confirmation Date, (d) any Claim arising from the recovery of
property under sections 330 or 553 of the Bankruptcy Code and allowed in
accordance with section 502(h) of the Bankruptcy Code, (e) any Claim allowed
under or pursuant to the terms of this Plan, or (f) any Claim that has been
allowed by a Final Order.
1.6 "Amended Bylaws" means the amended and restated bylaws of the
Combined Company, which shall be substantially in the form contained in the Plan
Supplement and as annexed to the Merger Agreement.
1.7 "Amended Certificate of Incorporation" means the amended and
restated certificate of incorporation of the Combined Company, which shall be
substantially in the form contained in the Plan Supplement and as annexed to the
Merger Agreement.
1.8 "Assumption Schedule" means the schedule of executory contracts and
unexpired leases designated by the Debtors for assumption by and, as may be the
case, assignment to the Combined Company as of the Effective Date of the Plan,
pursuant to sections 365 and 1123(b)(2) of the Bankruptcy Code and Section 12.2
of the Plan, which shall be in substantially the form contained in the Plan
Supplement.
1.9 "Ballot" means the form or forms distributed to each holder of an
impaired Claim or Equity Interest on which ballot such holder of a Claim or
Equity Interest may, among other things, (a) vote to accept or reject the Plan;
and (b) to the extent that such holder holds an Unsecured Claim, elect to have
its Unsecured Claim treated as a Convenience Claim in the Convenience Claim
Class, and (c) to the extent that such holder holds an Unsecured Claim, elects
to accept the Cash Election Offer.
1.10 "BankBoston DIP Revolving Credit Facility" means that certain Loan
and Security Agreement, dated as of January 5, 1998, as amended by order of the
Bankruptcy Court dated March 27, 1998, and as may be amended from time to time,
by and among each member of the HomePlace Group, as borrowers, and BankBoston
Retail Finance Inc., as agent for itself and the other
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lenders party thereto, as the lenders, or any successor or replacement
debtor-in-possession revolving credit loan facility.
1.11 "BankBoston DIP Term Loan Agreement" means that certain Term Loan
and Security Agreement, dated as of March 27, 1998, and as may be amended from
time to time, by and among each member of the HomePlace Group, as borrowers, and
BankBoston Retail Finance Inc., as agent for itself and the other lenders party
thereto, as the lenders, or any successor or replacement debtor-in-possession
term loan facility.
1.12 "BankBoston DIP Facility Claims" means all Claims against the
Debtors or other Entities directly or indirectly arising from or under, or
relating in any way to, the BankBoston DIP Revolving Credit Facility and/or the
BankBoston DIP Term Loan Agreement.
1.13 "Bankruptcy Code" means title 11 of the United States Code, as
amended from time to time, as applicable to the Reorganization Cases, as in
effect on the Confirmation Date.
1.14 "Bankruptcy Court" means the United States Bankruptcy Court for
the District of Delaware having jurisdiction over the Reorganization Cases.
1.15 "Bankruptcy Rules" means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme Court under section 2075, title 28,
United States Code, and the Local Rules of the Bankruptcy Court, as amended from
time to time and applicable to the Reorganization Cases.
1.16 "Business Day" means any day other than (i) a Saturday, (ii) a
Sunday, (iii) any other day on which banking institutions in New York, New York
are required or authorized to close by law or executive order, and (iv) the
Friday after Thanksgiving.
1.17 "Cash" means legal tender of the United States of America.
1.18 "Cash Election Commitment Amount" means the amount of the Tendered
Claims that can be purchased pursuant to the Cash Election Offer with the
proceeds of the Waccamaw Shareholder Mandatory Subscription Commitment.
1.19 "Cash Election Deficiency Event" means an event that occurs if, as
of the Voting Deadline, the Tendered Amount is less than $35 million.
1.20 "Cash Election Deficiency Amount" means, in the event of a Cash
Election Deficiency Event, the amount by which the Tendered Amount is less than
$35 million as of the Voting Deadline.
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1.21 "Cash Election Offer" means the aggregate set of transactions
contemplated by Section 8.2 of this Plan pursuant to which each holder of an
Unsecured Claim has the right, subject to certain restrictions set forth in
Section 8.2, (a) to tender its Unsecured Claim for a Cash payment from the
Reorganization Trustee in an amount equal to fifty percent (50%) of such Allowed
Unsecured Claim or (b)(i) to tender one half (1/2) of its Unsecured Claim for a
Cash payment from the Reorganization Trustee in an amount equal to fifty percent
(50%) of the Allowed Tendered Claim Portion and (ii) to receive a Stock
Distribution on account of the Allowed Non-Tendered Claim Portion.
1.22 "Cash Election Offer Price" means fifty percent (50%).
1.23 "Cash Election Transactions" means, collectively, all transactions
relating to (a) the Subscription Offer and (b) the Cash Election Offer.
1.24 "Cash Investment Yield" means the net yield earned by the
Reorganization Trustee from the investment of Cash held pending distribution in
accordance with the provisions of this Plan, including any Cash received by the
Reorganization Trustee on account of dividends and other Distributions on New
Common Stock, which investment shall be in a manner consistent with the
Reorganization Trustee's investment and deposit guidelines set forth in the
Reorganization Trust Agreement.
1.25 "Causes of Action" means any and all actions, causes of action,
liabilities, obligations, rights, suits, debts, sums of money, damages,
judgments, claims and demands whatsoever, whether known or unknown, in law,
equity or otherwise.
1.26 "Claim" means a claim against any of the Debtors, whether or not
asserted, as defined in section 101(5) of the Bankruptcy Code.
1.27 "Claims Agent" means Meade Monger & Consultants Corporation, the
Claims and Noticing Agent for the HomePlace Group pursuant to that certain Order
Appointing Meade Monger & Consultants Corporation as Claims and Noticing Agent,
entered on January 25, 1999.
1.28 "Claims Procedure Order" means that certain Order Establishing
Procedure for Objections to Claims and Settlement Authority, dated March 15,
1999.
1.29 "Class" means a category of holders of Claims or Interests
described in Article III hereof.
1.30 "Class I Directors" shall have the meaning ascribed to such term
in Section 8.12 of the Plan.
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1.31 "Class II Directors" shall have the meaning ascribed to such term
in Section 8.12 of the Plan.
1.32 "Class 7 Equity Interests" means, collectively, the Equity
Interests that comprise Class 7A, 7B and 7C, comprised of Old Series A Preferred
Stock, Old Series B Preferred Stock and Old Series C Preferred Stock.
1.33 "Collateral" means any property, or interest in property, of the
Estate of any of the Debtors subject to a Lien to secure the payment or
performance of a Claim, which Lien is not subject to avoidance under the
Bankruptcy Code.
1.34 "Combined Company" means the corporation that, as of the Effective
Date, is or will be the surviving corporation in the HomePlace/Waccamaw Merger.
1.35 "Confirmation Date" means the date on which the Clerk of the
Bankruptcy Court enters the Confirmation Order on the docket of the Bankruptcy
Court.
1.36 "Confirmation Hearing" means the hearing held by the Bankruptcy
Court on confirmation of this Plan, as it may be adjourned or continued from
time to time.
1.37 "Confirmation Order" means the order of the Bankruptcy Court
confirming this Plan under section 1129 of the Bankruptcy Code.
1.38 "Convenience Claim" means (a) an Allowed Unsecured Claim against
any of the Debtors in an amount equal to $500 or less, (b) the Allowed Unsecured
Claim against any of the Debtors of a holder that has irrevocably elected on its
Ballot to reduce such Claim against any of the Debtors to the amount of $500 or
less, and/or (c) a Disputed Unsecured Claim against any of the Debtors that
becomes an Allowed Unsecured Claim of $500 or less with the consent of and in
the amount agreed to by the Debtors or the Reorganization Trustee, as the case
may be, or pursuant to a Final Order.
1.39 "Creditor Distributable Shares" means, at any time, the shares of
New Common Stock representing (a) 15,000,000 shares of New Common Stock, (b)
minus the Waccamaw Shareholder Exclusive Right Shares, (c) minus the Equity
Shares.
1.40 "Creditors' Committee" means the official committee of unsecured
creditors appointed by the United States Trustee in the Reorganization Cases on
January 16, 1998 to represent unsecured creditors of the Debtors, as such
committee may be constituted from time to time.
1.41 "Cure" means the Distribution of Cash, or such other property as
may be agreed upon by the parties and/or ordered by the Bankruptcy Court, with
respect to the assumption of an executory contract or unexpired lease, pursuant
to section 365(b) of the Bankruptcy Code, in an amount
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equal to all accrued, due and unpaid monetary obligations, without interest, or
such other amount as may be agreed upon by the parties or ordered by the
Bankruptcy Court, under such executory contract or unexpired lease, to the
extent such obligations are enforceable under the Bankruptcy Code and applicable
non-bankruptcy law.
1.42 "Debtors" means, collectively, the members of the HomePlace Group.
1.43 "Debtors-in-Possession" means the Debtors in their capacity as
debtors-in-possession in the Reorganization Cases under sections 1107(a) and
1108 of the Bankruptcy Code.
1.44 "Disallowed Claim" means (a) a Claim, or any portion thereof, that
has been disallowed by a Final Order or (b) unless scheduled by the Debtors as a
fixed, liquidated, non-contingent and undisputed Claim, a Claim as to which a
proof of Claim bar date has been established by the Bankruptcy Code, Bankruptcy
Rules or Final Order of the Bankruptcy Court but no proof of Claim has been
timely filed or deemed timely filed with the Bankruptcy Court pursuant to either
the Bankruptcy Code or any Final Order of the Bankruptcy Court.
1.45 "Disallowed Equity Interest" means an Equity Interest, or any
portion thereof, that has been disallowed by a Final Order.
1.46 "Disclosure Statement" means the disclosure statement relating to
this Plan, dated as of the date hereof, including the exhibits and schedules
thereto, as the same may be amended, modified or supplemented from time to time.
1.47 "Disclosure Statement Approval Date" means the date on which the
Clerk of the Bankruptcy Court enters the Disclosure Statement Approval Order on
the docket of the Bankruptcy Court approving the adequacy of the Disclosure
Statement under section 1125 of the Bankruptcy Code.
1.48 "Disclosure Statement Approval Order" means that certain Order,
under 11 U.S.C. ss.ss. 105(a) And (d), 1125(b), 1126(a) And 1128 and Fed. R.
Bankr. P. 2002, 3003, 3017, 3018 & 3020, (1) Approving Disclosure Statement, (2)
Scheduling Hearing On Confirmation Of Plan of Reorganization, (3) Establishing
Deadline and Procedures For Filing Objections to Confirmation of Plan of
Reorganization, (4) Establishing Deadline and Procedures for Temporary
Allowances of Claims for Voting Purposes, (5) Determining Treatment of Certain
Unliquidated, Contingent or Disputed Claims for Notice, Voting and Distribution
Purposes, (6) Establishing Record Date, (7) Appointing Voting Agent and
Information Agent, (8) Approving Solicitation Packages, (9) Approving Form of
Notice of Hearing on Confirmation and Related Issues and Approving Solicitation
Procedures, (10) Approving Form of Ballots, (11) Establishing Deadline for
Receipt of Ballots, and (12) Establishing Procedures for Tabulation of Votes,
dated April 29, 1999.
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1.49 "Disputed Claim" means a Claim, or any portion thereof, that is
neither an Allowed Claim nor a Disallowed Claim.
1.50 "Disputed Equity Interest" means an Equity Interest, or any
portion thereof, that is neither an Allowed Equity Interest nor a Disallowed
Equity Interest.
1.51 "Disputed Reserve" means a reserve of Cash and/or New Common Stock
for the relevant Class, established herein for, among other things, (a) the
payment or other satisfaction of Disputed Claims or Disputed Equity Interests
that become Allowed Claims or Allowed Equity Interests after the Effective Date
and (b) the making of Additional Quarterly Distributions to holders of
previously Allowed Claims or Allowed Equity Interests, which reserve shall be
held in trust for the benefit of the holders of the above-referenced types of
Claims and Equity Interests and will not constitute property of the Estates or
of the Reorganized Debtors.
1.52 "Distributable Shares" means, at any time, the shares of New
Common Stock representing (a) 15,000,000 shares of New Common Stock, (b) minus
the Waccamaw Shareholder Exclusive Right Shares.
1.53 "Distributed Shares" means the shares of New Common Stock that
have been distributed to holders of Allowed Unsecured Claims and holders of
Allowed Equity Interests under Sections V and IX of this Plan, but excluding any
shares of New Common Stock distributed pursuant to the Subscription Offer. The
New Common Stock held by the Reorganization Trustee shall not constitute
Distributed Shares.
1.54 "Distributions" means the distribution in accordance with this
Plan of: (a) Cash, or (b) New Common Stock, as the case may be.
1.55 "Effective Date" means the first Business Day on which (a) all
conditions precedent set forth in Section 13.2 of the Plan have been satisfied
or waived as provided in Section 13.3 hereof and (b) no stay of the Confirmation
Order is in effect.
1.56 "Entity" has the meaning assigned to such term in section 101(15)
of the Bankruptcy Code.
1.57 "Equity Interest" means, (a) as of the Petition Date, any capital
stock or other ownership interest in HomePlace Holdings, whether or not
transferable, and any, option, warrant or right to purchase, sell or subscribe
for an ownership interest or other equity security in HomePlace Holdings,
including, but not limited to, (i) the Old Capital Stock and (ii) redemption,
conversion, exchange, voting, participation, dividend rights and liquidation
preferences relating to Old Capital Stock, and (b) as of the Date of the
Reincorporation Merger, any capital stock or ownership interest in New HomePlace
arising
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from the conversion of any Equity Interest described in subsection (a) above as
a result of the Reincorporation Merger.
1.58 "Equity Shares" means 250,000 shares of New Common Stock.
1.59 "Estate" means, as to each Debtor, the estate of such Debtor in
its Reorganization Case created by section 541 of the Bankruptcy Code upon the
commencement of such Reorganization Case.
1.60 "Estimated Disputed Unsecured Claims" means Disputed Unsecured
Claims against the Debtors solely to the extent that, prior to the Voting
Deadline, the Bankruptcy Court has estimated in accordance with Section 9.10
hereof the Allowed amount of such Disputed Unsecured Claims.
1.61 "Excess Cash Election Cash Payment Percentage" means the
percentage obtained by (a) dividing the Cash Election Commitment Amount by the
Tendered Amount, and (b) multiplying the product obtained in (a) by one-hundred
(100).
1.62 "Excess Cash Election Event" means an event that occurs if, as of
the Voting Deadline, the Tendered Amount is greater than the Cash Election
Commitment Amount.
1.63 "Excess Cash Election Portion" means with respect to each Tendered
Claim if an Excess Cash Election Event occurs, the amount obtained by
multiplying the amount of such Tendered Claim by the Excess Cash Election Stock
Distribution Percentage.
1.64 "Excess Cash Election Stock Distribution Percentage" means the
percentage obtained by subtracting the Excess Cash Election Cash Payment
Percentage from one-hundred (100).
1.65 "Exit Facility" means the post-confirmation financing facility to
be entered into on the Effective Date by the Combined Company and the lenders
providing such financing.
1.66 "Exit Facility Commitment Letter" means a commitment letter for
the Exit Facility, which shall be in substantially the form contained in the
Plan Supplement.
1.67 "Final Order" means an order or judgment of the Bankruptcy Court
as to which the time to appeal, petition for certiorari, or move for reargument
or rehearing has expired and as to which no appeal, petition for certiorari or
other proceedings for reargument or rehearing shall then be pending, provided,
however, if an appeal, writ of certiorari, reargument or rehearing thereof has
been filed or sought, such order of the Bankruptcy Court shall have been
affirmed by the highest court to which such order was appealed, or certiorari
shall have been denied or reargument or rehearing shall have been denied or
resulted in no modification of such order, and the time to take any further
appeal,
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petition for certiorari or move for reargument or rehearing shall have expired;
provided, further, that the possibility that a motion under Rule 59 or Rule 60
of the Federal Rules of Civil Procedure, or any analogous rule under the
Bankruptcy Rules, may be filed with respect to such order shall not cause such
order not to be a Final Order.
1.68 "HomePlace Group" means, collectively, HomePlace Stores, HomePlace
Stores Two, HomePlace Management, and HomePlace Holdings.
1.69 "HomePlace Group DIP Employee Retention Plan" means that certain
Employee Retention Program and Employee Severance Program as authorized by the
Bankruptcy Court pursuant to an order dated March 2, 1998.
1.70 "HomePlace Holdings" means HomePlace Holdings, Inc., a Nevada
corporation and a Debtor and Debtor-in-Possession in Reorganization Case No.
98-12 (PJW).
1.71 "HomePlace Management" means HomePlace Management, Inc., an Ohio
corporation and a Debtor and Debtor-in-Possession in Reorganization Case No.
98-11 (PJW).
1.72 "HomePlace Management Common Stock" means the common stock of
HomePlace Management with a par value of $0.001 per share, authorized and
outstanding as of the Petition Date, all of which is held by HomePlace Holdings.
1.73 "HomePlace Stores" means HomePlace Stores, Inc., a Delaware
corporation and Debtor and Debtor-in-Possession in Reorganization No. 98-8
(PJW).
1.74 "HomePlace Stores Common Stock" means the common stock of
HomePlace Stores with a par value of $0.001 per share, authorized and
outstanding as of the Petition Date, all of which is held by HomePlace Holdings.
1.75 "HomePlace Stores Two" means HomePlace Stores Two, Inc., a
Delaware corporation and a Debtor and Debtor-in-Possession in Reorganization
Case No. 98-9 (PJW).
1.76 "HomePlace Stores Two Common Stock" means the common stock of
HomePlace Stores Two with a par value of $0.001 per share, authorized and
outstanding as of the Petition Date, all of which is held by HomePlace Holdings.
1.77 "HomePlace/Waccamaw Merger" or "Merger" means the merger of
Waccamaw with and into New HomePlace pursuant to the terms of the Merger
Agreement.
1.78 "Initial Distribution Date" means the Effective Date or as soon
thereafter as practicable.
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1.79 "Liabilities" means any and all costs, expenses, actions, Causes
of Action, suits, controversies, damages, claims, liabilities or demands of any
nature, whether known or unknown, foreseen or unforeseen, existing or
hereinafter arising, liquidated or unliquidated, matured or not matured,
contingent or direct, whether arising at common law, in equity, or under any
statute, based in whole or in part on any act or omission or other occurrence
arising or taking place on or prior to the Effective Date.
1.80 "Lien" has the meaning ascribed to such term in section 101(37) of
the Bankruptcy Code (but a lien that has or may be been avoided pursuant to
sections 544, 545, 546, 547, 548 and 549 of the Bankruptcy Code shall not
constitute a Lien).
1.81 "Maxus" means Maxus Leasing Group, Inc., a corporation organized
and existing under the laws of the State of Ohio.
1.82 "Maxus/National City Financing Transactions" means, collectively,
the transactions evidenced by that certain Master Lease No. 1107, dated as of
October 31, 1995, between HomePlace Holdings and Maxus and the schedules
thereto, all notices of assignment, bills of sale, options and promissory notes
related thereto, excluding, however, Schedule No. 007, dated October 23, 1995
relating to computer equipment used and maintained at the HomePlace group's
headquarters at 7887 Hub Parkway, Valley View, Ohio 44125.
1.83 "Maxus Secured Claims" means the Secured Claims against the
Debtors directly or indirectly arising from or under, or relating in any way to,
the Maxus/National City Financing Transactions that are held as of the date
hereof by Maxus, to be determined by a Final Order after a valuation hearing
under section 506 of the Bankruptcy Code in connection with the contested
matters pending before the Bankruptcy Court relating to the Maxus/National City
Financing Transactions.
1.84 "Maxus Deficiency Claim" means the Unsecured Deficiency Claim
against the Debtors directly or indirectly arising from or under, or relating in
any way to, the Maxus/National City Financing Transactions that are held as of
the date hereof by Maxus, to be determined by a Final Order in connection with
the contested matters pending before the Bankruptcy Court relating to the
Maxus/National City Financing Transactions.
1.85 "Merger Agreement" means the Agreement and Plan of Merger, dated
as of March 16, 1999, by and among HomePlace Holdings, New HomePlace and
Waccamaw relating to the HomePlace/Waccamaw Merger, as amended and in effect as
of the date hereof. A copy of the Merger Agreement, as amended, without
exhibits, is annexed as Exhibit B to the Disclosure Statement and is
incorporated herein by reference.
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1.86 "Merger Effective Time" shall have the meaning ascribed to the
term "Effective Time" in section 1.03 of the Merger Agreement, which shall be
substantially concurrent with and shall occur on the Effective Date.
1.87 "National City" means National City Leasing Corporation, a
national banking association organized and existing under the laws of the United
States of America.
1.88 "National City Secured Claims" means the Secured Claims against
the Debtors directly or indirectly arising from or under, or relating in any way
to, the Maxus/National City Financing Transactions that are held as of the date
hereof by National City, to be determined by a Final Order after a valuation
hearing under section 506 of the Bankruptcy Code in connection with the
contested matters pending before the Bankruptcy Court relating to the
Maxus/National City Financing Transactions.
1.89 "National City Deficiency Claim" means the Unsecured Deficiency
Claim against the Debtors directly or indirectly arising from or under, or
relating in any way to, the Maxus/National City Financing Transactions that are
held as of the date hereof by National City, to be determined by a Final Order
of the Bankruptcy Court in connection with the contested matters pending before
the Bankruptcy Court relating to the Maxus/National City Financing Transactions.
1.90 "New Common Stock" means the shares of Common Stock of the
Combined Company, par value $0.001 per share, to be authorized by the Combined
Company on the Effective Date.
1.91 "New HomePlace" means HomePlace of America, Inc., a Delaware
corporation, that shall be the surviving corporation and the successor in
interest to HomePlace Holdings upon the Reincorporation Merger.
1.92 "New Preferred Warrants" means the new warrants of the Combined
Company described in Section 6.2.1 hereof, issued on and after the Effective
Date and distributed in the manner provided in this Plan. The New Preferred
Warrants shall be substantially in the form contained in the Plan Supplement.
1.93 "New Waccamaw Warrants" means the new warrants of the Combined
Company described in Section 6.2.2 hereof, issued on and after the Effective
Date and distributed in the manner provided in this Plan. The New Waccamaw
Warrants shall be substantially in the form contained in the Plan Supplement.
1.94 "New Warrants" means the new warrants of the Combined Company to
be authorized by the Combined Company as of the Effective Date comprised of (a)
the New Preferred Warrants and (b) the New Waccamaw Warrants.
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1.95 "Non-Tendered Claim" means, as the case may be, (a) an Unsecured
Claim for which the holder thereof has rejected, or has been deemed to have
rejected, the Cash Election Offer or (b) the Non-Tendered Claim Portion.
1.96 "Non-Tendered Claim Portion" means for each Unsecured Claim for
which the holder thereof has elected to accept the Cash Election Offer for fifty
percent (50%) of such Unsecured Claim, an amount equal to the Tendered Claim
Portion.
1.97 "Offered Shares" means the shares of New Common Stock being
offered by the Combined Company for subscription to and purchase by the Waccamaw
Shareholder pursuant to the Subscription Offer. The Offered Shares shall consist
of Waccamaw Shareholder Exclusive Right Shares.
1.98 "Old Capital Stock" means, collectively: (a) the Old Common Stock,
(b) the Old Preferred Stock and (c) the Old Stock Options.
1.99 "Old Class A Common Stock" means the Class A Common Stock of
HomePlace Holdings with a par value of $0.001 per share.
1.100 "Old Class B Common Stock" means the Class B Common Stock of
HomePlace Holdings with a par value of $0.001 per share.
1.101 "Old Class C Common Stock" means the Class C Common Stock of
HomePlace Holdings with a par value of $0.001 per share.
1.102 "Old Class D Common Stock" means the Class D Common Stock of
HomePlace Holdings with a par value of $0.001 per share.
1.103 "Old Class 1 Serial Preferred Stock" means the Class 1 Serial
Preferred Stock of HomePlace Holdings with a par value of $0.001 per share.
1.104 "Old Class 2 Serial Preferred Stock" means the Class 2 Serial
Preferred Stock of HomePlace Holdings with a par value of $0.001 per share.
1.105 "Old Common Stock" means the common stock of HomePlace Holdings
comprised of (a) Old Class A Common Stock, (b) Old Class B Common Stock, (c) Old
Class C Common Stock, and (d) Old Class D Common Stock.
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1.106 "Old Preferred Stock" means the preferred stock of HomePlace
Holdings comprised of (a) Old Series A Preferred Stock, (b) Old Series B
Preferred Stock, (c) Old Series C Preferred Stock, (d) Old Class 1 Serial
Preferred Stock, and (e) Old Class 2 Serial Preferred Stock.
1.107 "Old Series A Preferred Stock" means the Series A Preferred Stock
of HomePlace Holdings with a par value of $0.001 per share.
1.108 "Old Series B Preferred Stock" means the Series B Preferred Stock
of HomePlace Holdings with a par value of $0.001 per share.
1.109 "Old Series C Preferred Stock" means the Series C Preferred Stock
of HomePlace Holdings with a par value of $0.001 per share.
1.110 "Old Stock Options" means any options, warrants or other rights
to purchase Old Common Stock, whenever granted.
1.111 "Operative Agreements" means the Merger Agreement, the
Reincorporation Merger Agreement, and any agreements to be entered into on or
before the Effective Date pursuant to the Plan, all of which shall be
satisfactory in form and substance to the Debtors and Waccamaw.
1.112 "Other Secured Claims" means any Secured Claim against one of the
Debtors that is not a Maxus Secured Claim, National City Secured Claim or
BankBoston DIP Facility Claim.
1.113 "Person" shall have the meaning ascribed to such term in section
101(41) of the Bankruptcy Code.
1.114 "Petition Date" means January 5, 1998, the date on which the
members of the HomePlace Group filed their Chapter 11 petitions and commenced
the Reorganization Cases.
1.115 "Plan" means this Joint Plan of Reorganization, including the
Plan Supplement, the schedules (including the Assumption Schedule) and exhibits
hereto, as the same may be amended, modified or supplemented from time to time
in accordance with the terms hereof.
1.116 "Plan Supplement" means the form of documents specified in
Section 18.6 of the Plan, which are incorporated herein by reference.
1.117 "Plan Transactions" means the Reincorporation Merger, the Merger,
including the other transactions to be taken by the parties on or before the
Effective Date in accordance with the provisions of the Merger Agreement, the
other Operative Agreements, and the Plan, including, but not limited to the Cash
Election Offer, the Subscription Offer, and the mergers and consolidations and
other matters described in Section VIII of the Plan.
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1.118 "Potential Rejection Claim" means the contingent Claim that a
Potential Rejection Claimant may assert for rejection damages under section
365(g) of the Bankruptcy Code arising from potential rejection of an unexpired
lease or executory contract with any member of the HomePlace Group pursuant to
Section XII of the Plan.
1.119 "Potential Rejection Claimant" means any party to an unexpired
lease or executory contract with any member of the HomePlace Group that is
subject to rejection under section 365 of the Bankruptcy Code pursuant to
Section XII of the Plan.
1.120 "Priority Non-Tax Claim" means any Claim of a kind specified in
sections 507(a)(3), (4), (5), (6), (7) or (9) of the Bankruptcy Code.
1.121 "Priority Tax Claim" means any Claim of a governmental unit of
the kind specified in section 507(a)(8) of the Bankruptcy Code.
1.122 "Professional Fees" means a Claim of a professional, retained in
these Reorganization Cases, or any Reorganization Case, pursuant to sections 327
and 1103 of the Bankruptcy Code or otherwise, for compensation or reimbursement
of costs and expenses relating to services incurred prior to and including the
Confirmation Date, when and to the extent any Claim described above is Allowed
by a Final Order entered pursuant to sections 330, 331, 503(b), or 1103 of the
Bankruptcy Code.
1.123 "Quarterly Distribution Date" shall have the meaning ascribed to
such term in Section 10.5 hereof.
1.124 "Ratable Proportion" means, (i) with reference to any
Distribution on account of any Allowed Claim in any Class, the ratio (expressed
as a percentage) that the amount of such Allowed Claim bears to the aggregate
amount of Allowed Claims of the same Class plus all Disputed Claims in such
Class, (ii) with reference to any Distribution on account of any Allowed Equity
Interest in any Class, the ratio (expressed as a percentage) that the amount (in
number of shares) of such Allowed Equity Interest bears to the aggregate amount
(in number of shares) of Allowed Equity Interests of the same Class plus all
Disputed Equity Interests in such Class, and (iii) with reference to any
Distribution of the Cash Investment Yield, the portion of the Cash Investment
Yield allocable to a particular Allowed Claim or Allowed Equity Interest, as the
case may be, on the basis of the amount of the Cash then being distributed on
account of such Allowed Claims or Equity Interests (including dividends and
other Distributions on New Common Stock being distributed on account of such
Allowed Claims or Allowed Equity Interests). Calculations of the Ratable
Proportion of the Cash Investment Yield to be distributed at any particular time
will be based on the Cash Investment Yield generated as of the last day of the
month prior to the month in which such Distributions are to be made.
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1.125 "Record Date" means the record date for determining an
entitlement to receive Distributions under the Plan on account of Allowed Claims
or Allowed Equity Interests, which (a) for the Initial Distribution Date shall
be the Confirmation Date and (b) for each Quarterly Distribution Date shall mean
the tenth (10) Business Day prior to such Quarterly Distribution Date.
1.126 "Reincorporation Merger" means the reincorporation of HomePlace
Holdings as a Delaware corporation as soon as practicable after the Confirmation
Date, and separate and apart from the HomePlace/Waccamaw Merger, through the
merger of HomePlace Holdings into New HomePlace so that HomePlace Holdings'
separate corporate existence will cease and New HomePlace will be the surviving
corporation.
1.127 "Reincorporation Merger Agreement" means the Agreement and Plan
of Merger, by and among HomePlace Holdings and New HomePlace relating to the
Reincorporation Merger. The Reincorporation Merger Agreement shall be
substantially in the form contained in the Plan Supplement and shall be deemed
incorporated herein by reference.
1.128 "Reinstated" or "Reinstatement" means leaving unaltered the
legal, equitable, and contractual rights to which a Claim entitles the holder of
such Claim so as to leave such Claim unimpaired in accordance with section 1124
of the Bankruptcy Code, thereby entitling the holder of such Claim to, but not
more than, (a) reinstatement of the original maturity of the obligations on
which such Claim is based, and (b) payment, as provided herein, of an amount of
Cash consisting solely of the sum of (i) matured but unpaid principal
installments, without regard to any acceleration of maturity, accruing prior to
the Effective Date, (ii) accrued but unpaid interest as of the Petition Date,
and (iii) reasonable fees, expenses, and charges, to the extent such fees,
expenses, and charges are Allowed under the Bankruptcy Code and are provided for
in the agreement or agreements on which such Claim is based; provided, however,
that any contractual right that does not pertain to the payment when due of
principal and interest on the obligation on which such Claim is based,
including, but not limited to, financial covenant ratios, negative pledge
covenants, covenants or restrictions on merger or consolidation, and affirmative
covenants regarding corporate existence prohibiting certain transactions or
actions contemplated by the Plan, or conditioning such transactions or actions
on certain factors, shall not be reinstated in order to accomplish
Reinstatement.
1.129 "Reorganization Cases" means the cases commenced under Chapter 11
of the Bankruptcy Code by the members of the HomePlace Group before the
Bankruptcy Court, as referenced by Case Nos. 98-8 (PJW), 98-10 (PJW), 98-11
(PJW) and 98-12 (PJW), and which are administratively consolidated under Case
No. 98-8 (PJW).
1.130 "Reorganized Debtors" means, on and after the Effective Date,
collectively, (a) the Combined Company in its capacity as the successor by
merger to HomePlace Holdings (and any successors thereto by merger,
consolidation or otherwise) and (b) the Subsidiaries (and any successors thereto
by merger, consolidation or otherwise).
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1.131 "Reorganization Trust" means the trust to be established under
the Plan and the Reorganization Trust Agreement.
1.132 "Reorganization Trust Agreement" means the agreement to be
executed by the Debtors and the Reorganization Trustee as described in Section
XI of the Plan, which shall govern the rights and obligations of the
Reorganization Trustee. The Reorganization Trust Agreement will be in
substantially the form contained in the Plan Supplement.
1.133 "Reorganization Trustee" means any Person or Entity that serves
as the reorganization trustee under the Reorganization Trust Agreement to
perform the duties as set forth in Section XI of the Plan and the Reorganization
Trust Agreement.
1.134 "Representative Creditors" means three Entities that are holders
of Unsecured Claims that are selected by the Creditors' Committee prior to the
Confirmation Date solely to direct the Reorganization Trustee regarding the
voting of any Reserved Shares.
1.135 "Reserved Shares" means the shares of New Common Stock held by
the Reorganization Trustee in a number equal to the sum of (a) number of
Distributable Shares (b) minus the number of Distributed Shares.
1.136 "Restructuring Note" means each promissory note to be executed
and delivered by the Combined Company to holders of Allowed Secured Claims in
Class 3 or Class 4 of this Plan and, with respect to each such Allowed Secured
Claim, Schedule A hereto indicates the principal terms of the Restructuring Note
to be delivered to each holder of such Allowed Secured Claim.
1.137 "Restructuring Treatment" means a treatment of a Class of Secured
Claims under the Plan pursuant to which, on the Effective Date, (a) the property
of the Debtors' Estates subject to the Liens securing the Allowed Claims of such
Class will be revested in and retained by the Combined Company, in each case
subject to such Liens, (b) each holder of Allowed Claims in such Class will
retain the Liens securing such Allowed Claims to the extent of the Allowed
amount of such Claims, and (c) each such holder will receive on account of such
Allowed Claims a Restructuring Note in the amount of such Allowed Claims, all as
provided by section 1129(b)(2)(A)(i) of the Bankruptcy Code. Any Liens treated
by the Restructuring Treatment that were subordinated or junior to any other
Lien in the same Collateral prior to the restructuring contemplated hereby will
be subordinate or junior to the extent such other Lien is restructured,
otherwise remains in existence following the Effective Date, or which is
replaced by the Exit Facility, to the same extent following the Effective Date
and the restructuring contemplated in this Plan. Such treatment shall be in
complete satisfaction of such Claims.
1.138 "Schedules" means the respective schedules of assets and
liabilities and the statements of financial affairs filed by the Debtors under
section 521 of the Bankruptcy Code and the
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Official Bankruptcy Forms of the Bankruptcy Rules, as such schedules and
statements have been or may be supplemented or amended from time to time.
1.139 "Secured Claim" means a Claim secured by a Lien on Collateral to
the extent of the value of the Collateral, as determined in accordance with
section 506(a) of the Bankruptcy Code, or as otherwise agreed upon in writing by
the Debtors and the holder of such Claim after notice to the Creditors'
Committee and subject to the approval of the Bankruptcy Court. To the extent
that the value of such interest is less than the amount of the Claim which has
the benefit of such security, the unsecured portion of such Claim is an
Unsecured Deficiency Claim unless, in any such case, the Class of which such
Claim is a part makes a valid and timely election under section 1111(b) of the
Bankruptcy Code to have such Claim treated as a Secured Claim to the extent
Allowed.
1.140 "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
1.141 "Stock Distribution" means the Distribution of New Common Stock
to holders of Allowed Unsecured Claims as provided under Section 5.2.5 of the
Plan.
1.142 "Subsidiaries" means, collectively, HomePlace Stores, HomePlace
Stores Two, and HomePlace Management.
1.143 "Subsidiary Common Stock" means, collectively, HomePlace Stores
Common Stock, HomePlace Stores Two Common Stock, and HomePlace Management Common
Stock.
1.144 "Subscription Amount" means $25,000,000, the amount of the Cash
payment that Waccamaw has agreed to pay, in accordance with the Waccamaw
Shareholder Subscription Agreement, to subscribe to and purchase New Common
Stock under the Subscription Offer.
1.145 "Subscription Offer" means the offer by the Combined Company to
sell Offered Shares to the Waccamaw Shareholder in accordance with Section 8.4
of this Plan.
1.146 "Subsidiaries Amended Bylaws" means the amended and restated
bylaws of the Subsidiaries, which shall be substantially in the form contained
in the Plan Supplement.
1.147 "Subsidiaries Amended Certificates of Incorporation" means the
amended and restated certificates of incorporation of the Subsidiaries, which
shall be substantially in the form contained in the Plan Supplement.
1.148 "Tendered Amount" means the aggregate amount of all Tendered
Claims.
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1.149 "Tendered Cash Amount" means the amount of Cash equal to the
Allowed Tendered Claims multiplied by the Cash Election Offer Price.
1.150 "Tendered Claim" means, as the case may be, (a) an Allowed or
Disputed Unsecured Claim for which the holder thereof has elected to accept the
Cash Election Offer in accordance with Section 8.2.1(a) hereof or (b) the
Tendered Claim Portion for an Unsecured Claim for which the holder thereof has
elected to accept the Cash Election Offer option for fifty percent (50%) of such
Unsecured Claim in accordance with Section 8.2.1(b) hereof.
1.151 "Tendered Claim Portion" means fifty percent (50%) of an Allowed
or Disputed Unsecured Claim for which the holder thereof has elected to accept
the Cash Election Offer option for fifty percent (50%) of such Unsecured Claim
in accordance with Section 8.2.1(b) hereof.
1.152 "Tendering Claim Holders" means all holders of Tendered Claims.
1.153 "Unofficial Equity Committee" means the unofficial committee of
holders of Old Preferred Stock formed to represent the interests of the holders
of such stock.
1.154 "Unofficial Equity Subcommittee" means the unofficial
subcommittee of certain holders of Old Preferred Stock comprised of Seth B.
Harris and certain other holders of Old Series A Preferred Stock.
1.155 "Unsecured Claim" means any Claim against one of the Debtors that
is not an Administrative Expense Claim, Secured Claim, Priority Tax Claim or
Priority Non-Tax Claim.
1.156 "Unsecured Deficiency Claim" means, with reference to a Claim
secured by a Lien against Collateral, an amount equal to the difference between
(a) the aggregate amount of such Claim after giving effect to the operation of
section 1111(b)(1)(A) of the Bankruptcy Code and (b) the amount of such Claim
that is a Secured Claim; provided, however, that, in the event that the Class in
which such Secured Claim is classified makes the election under section
1111(b)(2) of the Bankruptcy Code in accordance with Rule 3014 of the Bankruptcy
Rules, the Unsecured Deficiency Claim otherwise relating to such Secured Claim
shall be extinguished. An Unsecured Deficiency Claim is an Unsecured Claim.
1.157 "United States Trustee" means the Acting United States Trustee
appointed under section 591, title 28, United States Code to serve in the
District of Delaware.
1.158 "Voting Deadline" means the date set by the Bankruptcy Court by
which all Ballots for acceptance or rejection of this Plan must be received by
the Debtors or their Bankruptcy Court appointed agent.
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1.159 "Waccamaw" means Waccamaw Corporation, a South Carolina
corporation.
1.160 "Waccamaw Shareholder" means the shareholder of Waccamaw
immediately prior to the Effective Date.
1.161 "Waccamaw Shareholder Exclusive Right Shares" means 4,054,054
shares of New Common Stock.
1.162 "Waccamaw Shareholder Letter" means that certain letter, dated as
of March 16, 1999, which sets forth the Waccamaw Shareholder's obligations
relating to the HomePlace/Waccamaw Merger, and which shall be in the Plan
Supplement.
1.163 "Waccamaw Shareholder Subscription Agreement" means that certain
Subscription Agreement between New HomePlace and the Waccamaw Shareholder which
sets forth the Waccamaw Shareholder Mandatory Subscription Commitment, and which
shall be in the form as annexed as Exhibit C to the Disclosure Statement and
which is incorporated herein by reference.
1.164 "Waccamaw Shareholder Mandatory Subscription Commitment" means
the aggregate amount of the obligation of the Waccamaw Shareholder to make a
Cash payment to the Combined Company to purchase Offered Shares equal to the
product of: (a) Waccamaw Shareholder Exclusive Right Shares (b) multiplied by
the price of $6.16666675 per share.
SECTION II
INTERPRETATION; APPLICATION OF
DEFINITIONS, RULES OF CONSTRUCTION AND COMPUTATION OF TIME
Wherever from the context it appears appropriate, each term stated in
either the singular or the plural shall include both the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter. Unless otherwise specified, all
section, schedule or exhibit references in this Plan are to the respective
section of, or schedule or exhibit to, this Plan. For purposes of the Plan (a)
any reference in the Plan to a contract, instrument, release, indenture, or
other agreement or document being in a particular form or on particular terms
and conditions means that such document shall be substantially in such form or
substantially on such terms and conditions, (b) any reference in the Plan to an
existing document or exhibit filed or to be filed means such document or exhibit
as it may have been or may be amended, modified, or supplemented and (c) unless
otherwise specified, all references in the Plan to Sections, Articles,
Schedules, and Exhibits are references to Sections, Articles, Schedules, and
Exhibits of or to the Plan. The words "herein," "hereof," "hereto," "hereunder,"
and other words of similar meaning refer to this Plan as a whole and not to any
particular
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<PAGE> 32
section, subsection or clause contained in this Plan. A term used herein that is
not defined herein shall have the meaning assigned to that term in the
Bankruptcy Code or in the exhibits hereto. The rules of construction contained
in section 102 of the Bankruptcy Code shall apply to the construction of this
Plan. The headings in this Plan are for convenience of reference only and shall
not limit or otherwise affect the provisions of this Plan. Unless otherwise
indicated herein, all references to dollars means United States dollars. In
computing any period of time prescribed or allowed by the Plan, unless otherwise
expressly provided, the provisions of Bankruptcy Rule 9006(a) shall apply.
SECTION III
PAYMENT OF ADMINISTRATIVE
EXPENSE CLAIMS, PRIORITY TAX CLAIMS AND OTHER UNCLASSIFIED CLAIMS
3.1 Administrative Expense Claims.
Allowed Administrative Expense Claims shall be paid in Cash, in full,
on the Effective Date, or as soon as practicable after such Claims become
Allowed Claims if the date of allowance is later than the Effective Date, or in
such amounts and on such other terms either as may be agreed on between the
holders of such Claims and the Debtors or Reorganized Debtors, or according to
the ordinary business terms of the Debtors or the Reorganized Debtors and such
holders. All Entities that are awarded allowance of compensation or
reimbursement of expenses by the Bankruptcy Court under sections 503(b)(2),
503(b)(3), 503(b)(4) or 503(b)(5) of the Bankruptcy Code shall be paid in full
in such amounts as are Allowed by the Bankruptcy Court (a) on the later of (i)
the Effective Date or (ii) the date that is ten (10) Business Days after an
order of the Bankruptcy Court with respect to any such Allowed Administrative
Expense Claim becomes a Final Order or (b) on such other terms as may be
mutually agreed on between the holder of an Allowed Administrative Expense Claim
and the Debtors or the Reorganized Debtors.
3.2 Payment of BankBoston DIP Facility Claims.
All Allowed BankBoston DIP Facility Claims against the Debtors shall be
paid (a) on the Effective Date in Cash, or in a manner otherwise permitted
pursuant to the terms of the BankBoston DIP Revolving Credit Facility and the
BankBoston DIP Term Loan Agreement, in an amount equal to the amount of such
Allowed Claims or (b) on such other terms as may be mutually agreed on among (i)
the holder of a BankBoston DIP Facility Claim, (ii) the Debtors or the
Reorganized Debtors, as the case may be, and (iii) Waccamaw.
3.3 Priority Tax Claims.
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On the Initial Distribution Date, or as soon as practicable after such
Claim becomes an Allowed Claim if the date of allowance is later than the
Initial Distribution Date, a holder of an Allowed Priority Tax Claim shall be
entitled to receive in full satisfaction, settlement, release, and discharge of
and in exchange for such Allowed Priority Tax Claim (a) deferred Cash payments
in an aggregate principal amount equal to the amount of such Allowed Priority
Tax Claim plus interest on the unpaid portion thereof at the rate of five
percent (5%) per annum from the Effective Date through the date of payment
thereof or (b) such other treatment as to which the Debtors and such holder
shall have agreed upon in writing, with the approval of the Bankruptcy Court,
after notice to the Creditors' Committee. If deferred Cash payments are made to
a holder of an Allowed Priority Tax Claim, payments of principal shall be made
in annual installments, each such installment amount being equal to ten (10)
percent of such Allowed Priority Tax Claim plus accrued and unpaid interest,
with the first payment to be due on the first anniversary of the Initial
Distribution Date, and subsequent payments to be due on each successive
anniversary of the first payment date or as soon thereafter as is practicable;
provided, however, that any installments remaining unpaid on the date that is
six years after the date of assessment of the tax that is the basis of the
Allowed Priority Tax Claim shall be paid on the first Business Day following
such date, together with any accrued and unpaid interest to the date of payment;
provided, further, that the Debtors and the Reorganized Debtors reserve the
right to pay any Allowed Priority Tax Claim, or any remaining balance of such
Allowed Priority Tax Claim, in full at any time on or after the Effective Date
without premium or penalty.
SECTION IV
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
4.1 Summary.
For purposes of voting, and all confirmation issues, except as
otherwise provided herein, all Claims against the Debtors (except for
Administrative Expense Claims, BankBoston DIP Facility Claims and Priority Tax
Claims) and equity interests in the Debtors are classified as follows:
<TABLE>
<CAPTION>
===============================================================================================================
CLASS CLASS NAME STATUS
===============================================================================================================
<S> <C> <C>
Class 1 Priority Non-Tax Claims Unimpaired - not entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 2 Other Secured Claims Unimpaired - not entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 3 National City Secured Claims Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 4 Maxus Secured Claims Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 5 Unsecured Claims Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
</TABLE>
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<PAGE> 34
<TABLE>
<S> <C> <C>
---------------------------------------------------------------------------------------------------------------
Class 6 Convenience Claims Unimpaired - not entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 7A Old Series A Preferred Stock Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 7B Old Series B Preferred Stock Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 7C Old Series C Preferred Stock Impaired - entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 8 Old Common Stock Impaired - deemed rejected and not entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 9 Other Equity Interests Impaired - deemed rejected and not entitled to vote
---------------------------------------------------------------------------------------------------------------
Class 10 Subsidiary Common Stock Impaired - deemed to have accepted the plan and
not entitled to vote
---------------------------------------------------------------------------------------------------------------
</TABLE>
4.2 Classification and Treatment:
4.2.1 Class 1: Priority Non-Tax Claims.
Class 1 consists of all Priority Non-Tax Claims against the Debtors.
4.2.2 Class 2: Other Secured Claims.
Class 2 consists of all Other Secured Claims against the Debtors.
4.2.3 Class 3: National City Secured Claims.
Class 3 consists of National City Secured Claims, if any, against the Debtors.
4.2.4 Class 4: Maxus Secured Claims.
Class 4 consists of Maxus Secured Claims, if any, against the Debtors.
4.2.5 Class 5: Unsecured Claims.
Class 5 consists of all Unsecured Claims against the Debtors, including the
Maxus Deficiency Claim and the National City Deficiency Claim.
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<PAGE> 35
4.2.6 Class 6: Convenience Claims.
Class 6 consists of all Convenience Claims against the Debtors.
4.2.7 Class 7A: Old Series A Preferred Stock.
Class 7A consists of all interests of the holders of Old Series A Preferred
Stock in HomePlace Holdings.
4.2.8 Class 7B: Old Series B Preferred Stock.
Class 7B consists of all interests of the holders of Old Series A Preferred
Stock in HomePlace Holdings.
4.2.9 Class 7C: Old Series C Preferred Stock.
Class 7C consists of all interests of the holders of Old Series C Preferred
Stock in HomePlace Holdings.
4.2.10 Class 8: Old Common Stock.
Class 8 consists of all interests of the holders of Old Common Stock in
HomePlace Holdings.
4.2.11 Class 9: Other Equity Interests.
Class 9 consists of all Equity Interests in HomePlace Holdings not otherwise
classified in Classes 7A, 7B, 7C or 8, including the interests of holders of Old
Stock Options and any Claims of the types described in section 510(b) of the
Bankruptcy Code.
4.2.12 Class 10: Subsidiary Common Stock.
Class 10 consists of all interests in Subsidiary Common Stock
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<PAGE> 36
SECTION V
TREATMENT OF CLAIMS AND EQUITY
INTERESTS UNDER THE PLAN
5.1 Designation of Treatment.
The following treatment set forth in this Section V shall be accorded
to Claims against and equity interests in the Debtors.
5.2 Claims Against and Equity Interests in the Debtors.
5.2.1 Class 1: Priority Non-Tax Claims.
On the Initial Distribution Date, a holder of an Allowed Class 1
Priority Non-Tax Claim shall receive, in the sole discretion of the Reorganized
Debtors, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Class 1 Priority Non-Tax Claim (a) Cash equal to the
amount of such Allowed Class 1 Priority Non-Tax Claim, or (b) such other
treatment as to which the Reorganized Debtors and such holder shall have agreed
upon in writing.
5.2.2 Class 2: Other Secured Claims.
Each holder of an Allowed Other Secured Claim against a Debtor will be
dealt as though a separate Class and will be treated as follows: Each holder of
an Allowed Other Secured Claim against any of the Debtors shall, at the sole
option of the Debtors, receive on the Initial Distribution Date on account of
its Allowed Other Secured Claim (a) treatment as provided under section 1124(2)
or (3) of the Bankruptcy Code, with the Cash payments required by section
1124(2)(A) and (C) of the Bankruptcy Code being made on the Initial Distribution
Date; or (b) such holder's Collateral. If the holder of an Allowed Other Secured
Claim receives treatment as provided in (a) above, such holder shall retain the
Liens securing the Allowed Other Secured Claim until paid in full. Any
deficiency amount relating to an Other Secured Claim shall be treated as a Class
5 Unsecured Claim. Notwithstanding the foregoing, the Debtors and any holder of
an Allowed Other Secured Claim may agree to any alternate treatment of such
Other Secured Claim, which treatment may include preservation of such holder's
Lien; provided, however, that such treatment shall not provide a return to such
holder having a present value in excess of the amount of such holder's Allowed
Other Secured Claim. Any such agreement must be presented to the Bankruptcy
Court for approval at or prior to the Effective Date, and shall not materially
and adversely impact the treatment of any other creditor under the Plan.
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<PAGE> 37
5.2.3 Class 3: National City Secured Claims.
Unless the Bankruptcy Court determines by a Final Order that the
Maxus/National City Financing Transactions constitute unexpired leases under
section 365 of the Bankruptcy Code, in which case Section 12.8 of this Plan
shall apply, each holder of an Allowed National City Secured Claim against a
Debtor shall receive, in full satisfaction, settlement, release and discharge of
and in exchange for such holder's Claim, the Restructuring Treatment.
Notwithstanding the foregoing, the Debtors and any holder of an Allowed National
City Secured Claim may agree to any alternate treatment of such National City
Secured Claim, which treatment may include preservation of such holder's Lien;
provided, however, that such treatment shall not provide a return to such holder
having a present value in excess of the amount of such holder's Allowed National
City Secured Claim. Any such agreement must be presented to the Bankruptcy Court
for approval at or prior to the Effective Date, and shall not materially and
adversely impact the treatment of any other creditor under the Plan.
5.2.4 Class 4: Maxus Secured Claims.
Unless the Bankruptcy Court determines by a Final Order that the
Maxus/National City Financing Transactions constitute unexpired leases under
section 365 of the Bankruptcy Code, in which case Section 12.8 of this Plan
shall apply, each holder of an Allowed Maxus Secured Claim against a Debtor
shall receive, in full satisfaction, settlement, release and discharge of and in
exchange for such holder's Claim, the Restructuring Treatment. Notwithstanding
the foregoing, the Debtors and any holder of an Allowed Maxus Secured Claim may
agree to any alternate treatment of such Maxus Secured Claim, which treatment
may include preservation of such holder's Lien; provided, however, that such
treatment shall not provide a return to such holder having a present value in
excess of the amount of such holder's Allowed Maxus Secured Claim. Any such
agreement must be presented to the Bankruptcy Court for approval at or prior to
the Effective Date, and shall not materially and adversely impact the treatment
of any other creditor under the Plan.
5.2.5 Class 5: Unsecured Claims.
Unless a holder of an Allowed Unsecured Claim elects to accept the Cash
Election Offer (in which case such holder shall receive the treatment accorded
under Section 8.2.1 of the Plan), on the Initial Distribution Date or, if such
Unsecured Claim becomes an Allowed Unsecured Claim after the Initial
Distribution Date, on the next Quarterly Distribution Date after such Unsecured
Claim becomes an Allowed Unsecured Claim, each holder of an Allowed Unsecured
Claim, in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Unsecured Claim, shall receive on the Initial
Distribution Date a Ratable Proportion of the Creditor Distributable Shares.
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<PAGE> 38
5.2.6 Class 6: Convenience Class Claims.
Each holder of an Allowed Convenience Claim against any of the Debtors
shall be paid an amount in Cash equal to one-hundred percent (100%) of such
Allowed Convenience Claim, in full and complete satisfaction, settlement,
release, and discharge of and in exchange for such holder's Claim on the later
of (y) 30 days after the Effective Date; or (z) the first Business Day after the
date that is 30 days after the date such Claim becomes an Allowed Claim.
5.2.7 Class 7A: Old Series A Preferred Stock.
(a) Treatment if Plan is Accepted by Class 7A. If Class 7A accepts the
Plan in accordance with section 1126(d) of the Bankruptcy Code, on the Effective
Date, each holder of Allowed Old Series A Preferred Stock shall receive, in full
satisfaction, settlement, release, and discharge of and in exchange for such Old
Series A Preferred Stock, a Ratable Proportion of (x) twenty-two percent (22%)
of the Equity Shares and (y) twenty-two percent (22%) of the New Preferred
Warrants.
(b) Treatment if Plan is Not Accepted by Class 7A. If Class 7A does not
accept the Plan in accordance with section 1126(d) of the Bankruptcy Code and
the Plan is confirmed over the dissent of Class 7A as provided in Section 7.4 of
the Plan, (i) the holders of Allowed Class 7A Old Series A Preferred Stock shall
not receive any Distributions under the Plan on account of such Equity
Interests, (ii) the Distribution of New Common Stock provided under the Plan for
holders of Allowed Old Series A Preferred Stock shall be distributed to holders
of Allowed Class 5 Unsecured Claims in accordance with Section 5.2.5 of this
Plan, and (iii) the Distribution of New Warrants that otherwise would have been
made under Section 5.2.7(a) of the Plan shall not be made.
5.2.8 Class 7B: Old Series B Preferred Stock.
(a) Treatment if Plan is Accepted by Class 7B. If Class 7B accepts the
Plan in accordance with section 1126(d) of the Bankruptcy Code, on the Effective
Date each holder of Allowed Old Series B Preferred Stock shall receive, in full
satisfaction, settlement, release, and discharge of and in exchange for such Old
Series B Preferred Stock, a Ratable Proportion of (x) twenty-two percent (22%)
of the Equity Shares and (y) twenty-two percent (22%) of the New Preferred
Warrants.
(b) Treatment if Plan is Not Accepted by Class 7B. If Class 7B does not
accept the Plan in accordance with section 1126(d) of the Bankruptcy Code and
the Plan is confirmed over the dissent of Class 7B as provided in Section 7.4 of
the Plan, (i) the holders of Allowed Class 7B Old Series B Preferred Stock shall
not receive any Distributions under the Plan on account of such Equity
Interests, (ii) the Distribution of New Common Stock provided under the Plan for
holders of Allowed Old Series B Preferred Stock shall be distributed to holders
of Allowed Class 5 Unsecured Claims in accordance
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<PAGE> 39
with Section 5.2.5 of this Plan, and (iii) the Distribution of New Warrants that
otherwise would have been made under Section 5.2.8(a) of the Plan shall not be
made.
5.2.9 Class 7C: Old Series C Preferred Stock.
(a) Treatment if Plan is Accepted by Class 7C. If Class 7C accepts the
Plan in accordance with section 1126(d) of the Bankruptcy Code, on the Effective
Date each holder of Allowed Old Series C Preferred Stock shall receive, in full
satisfaction, settlement, release, and discharge of and in exchange for such Old
Series C Preferred Stock, a Ratable Proportion of (x) fifty-six percent (56%) of
the Equity Shares and (y) fifty-six percent (56%) of the New Preferred Warrants.
(b) Treatment if Plan is Not Accepted by Class 7C. If Class 7C does not
accept the Plan in accordance with section 1126(d) of the Bankruptcy Code and
the Plan is confirmed over the dissent of Class 7C as provided in Section 7.4 of
the Plan, (i) the holders of Allowed Class 7C Old Series C Preferred Stock shall
not receive any Distributions under the Plan on account of such Equity
Interests, (ii) the Distribution of New Common Stock provided under the Plan for
holders of Allowed Old Series C Preferred Stock shall be distributed to holders
of Allowed Class 5 Unsecured Claims in accordance with Section 5.2.5 of this
Plan, and (iii) the Distribution of New Warrants that otherwise would have been
made under Section 5.2.9(a) of the Plan shall not be made.
5.2.10 Class 8: Old Common Stock.
A holder of Old Common Stock in HomePlace Holdings shall receive no
distributions under the Plan on account of such Equity Interests.
5.2.11 Class 9: Other Equity Interests.
A holder of any Equity Interest not otherwise classified in Classes 7A,
7B, 7C and 8 shall receive no distributions under the Plan on account of such
Equity Interests.
5.2.12 Class 10: Subsidiary Common Stock.
The Subsidiary Common Stock, which is held by HomePlace Holdings, shall
remain outstanding except as provided in the Plan. The holder of Subsidiary
Common Stock is a proponent of the Plan and a member of the HomePlace Group and,
as such, shall receive the benefit of the Distributions made under, and the
settlements and transactions reflected in, the Plan. Such holder shall not be
entitled to receive any other Distributions under the Plan on account of the
Subsidiary Common Stock.
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<PAGE> 40
SECTION VI
PROVISIONS REGARDING NEW COMMON STOCK
AND NEW WARRANTS DISTRIBUTED PURSUANT TO THE PLAN
6.1 New Common Stock.
6.1.1 Authorization.
The charter of the Combined Company shall authorize the issuance of
forty million (40,000,000) shares of New Common Stock and five million
(5,000,000) shares of preferred stock (which preferred stock is authorized, but
shall not be issued, as of the Effective Date). On the Effective Date, (a)
holders of Allowed Unsecured Claims and holders of Allowed Class 7 Equity
Interests shall receive Stock Distributions of New Common Stock in accordance
with Section V hereof, (b) in accordance with the Merger Agreement, the Waccamaw
Shareholder shall receive ten million (10,000,000) shares of New Common Stock,
and (c) the Waccamaw Shareholder shall receive the Waccamaw Shareholder
Exclusive Right Shares in accordance with Section 8.4 hereof. No additional
shares may be issued other than as directed by the Board of Directors of the
Combined Company after the Effective Date.
6.1.2 Par Value.
The New Common Stock shall have a par value of $0.001 per share.
6.1.3 Rights.
The New Common Stock shall have such rights with respect to dividends,
liquidation, voting, and other matters as set forth in the Combined Company's
Amended Certificate of Incorporation, its Amended Bylaws, and as provided under
applicable law.
6.1.4 Management Options.
As part of the HomePlace/Waccamaw Merger, the Combined Company shall
effect the stock option plan in accordance with section 9.05 of the Merger
Agreement. The strike price of the options will be based on the market price of
the Combined Company's New Common Stock equity at the time of issuance or, if
issued on the Effective Date, at $12.00 per share, or if issued previously under
the
28
<PAGE> 41
Waccamaw Option Plan (as defined in the Merger Agreement), as adjusted pursuant
to section 9.05 of the Merger Agreement, at $11.20 per share.
6.2 New Warrants.
6.2.1 New Preferred Warrants.
As provided in, and subject to the restrictions set forth in, Sections
5.2.7, 5.2.8 and 5.2.9 of this Plan, the Combined Company shall issue to holders
of Allowed Class 7A Equity Interests, holders of Allowed Class 7B Equity
Interests and holders of Allowed Class 7C Equity Interests their respective
Ratable Proportions of New Preferred Warrants to purchase an aggregate amount of
1,250,000 shares of New Common Stock of the Combined Company. The New Preferred
Warrants shall be exercisable in accordance with the terms thereof over a
five-year period from and after the Effective Date. The exercise price of the
New Preferred Warrants for each share of New Common Stock of the Combined
Company shall be $14.00 per share.
6.2.2 New Waccamaw Warrants.
(a) Subject to Section 6.2.2(b) of the Plan, the Combined Company shall
issue to the Waccamaw Shareholder on the Effective Date New Waccamaw Warrants to
purchase an aggregate amount of 600,000 shares of New Common Stock of the
Combined Company. The New Waccamaw Warrants shall be exercisable in accordance
with the terms thereof over a period of nineteen (19) months from and after the
Effective Date. The exercise price of the New Waccamaw Warrants for each share
of New Common Stock of the Combined Company shall be $12.00 per share.
(b) (i) In the event that New Preferred Warrants are not issued
pursuant to Section 5.2.7(b) of the Plan, 22% of the New Waccamaw Warrants
otherwise to be issued under Section 6.2.2.(a) of the Plan shall not be issued
by the Combined Company to the Waccamaw Shareholder.
(ii) In the event that New Preferred Warrants are not issued
pursuant to Section 5.2.8(b) of the Plan, 22% of the New Waccamaw Warrants
otherwise to be issued under Section 6.2.2.(a) of the Plan shall not be issued
by the Combined Company to the Waccamaw Shareholder.
(iii) In the event that New Preferred Warrants are not issued
pursuant to Section 5.2.9(b) of the Plan, 56% of the New Waccamaw Warrants
otherwise to be issued under Section 6.2.2.(a) of the Plan shall not be issued
by the Combined Company to the Waccamaw Shareholder.
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SECTION VII
IMPAIRED AND UNIMPAIRED CLASSES OF CLAIMS
AND EQUITY INTERESTS UNDER THE PLAN;
ACCEPTANCE OR REJECTION OF THE PLAN
7.1 Holders of Claims and Equity Interests Entitled to Vote.
(a) Each holder of an Allowed Claim or Allowed Equity Interest, or the
holder of a Claim or Equity Interest that has been temporarily allowed for
voting purposes only under Bankruptcy Rule 3018(a), in an impaired Class of
Claims against or Equity Interests in the Debtors, shall be entitled to vote
separately to accept or reject this Plan as provided in the Disclosure Statement
Approval Order. Any unimpaired Class of Claims shall be deemed to have accepted
the Plan. Any Class of Claims or Equity Interests that will not receive or
retain any property on account of such Claims or Equity Interests under the Plan
shall be deemed to have rejected the Plan.
(b) Each of Classes 3, 4, 5, 7A, 7B and 7C is impaired hereunder and
the holders of Allowed Claims or Allowed Equity Interests in such Classes are
entitled to vote on this Plan. In accordance with section 1126(g) of the
Bankruptcy Code, Classes 8 and 9 and any other Class receiving no Distribution
on account of its Claims or Equity Interests are conclusively deemed to have
rejected the Plan. Because the Class 10 Equity Interests are held by a member of
the HomePlace Group who is also a proponent of the Plan, Class 10 is deemed to
have accepted the Plan.
7.2 Acceptance by Unimpaired Classes.
Each of Classes 1, 2 and 6 is unimpaired under this Plan, and each such
Class is conclusively presumed to have accepted the Plan pursuant to section
1126(f) of the Bankruptcy Code.
7.3 Elimination of Classes.
Any Class of Claims that is not occupied as of the date of the
commencement of the Confirmation Hearing by an Allowed Claim or a Claim
temporarily allowed under Bankruptcy Rule 3018 shall be deemed deleted from this
Plan for purposes of voting on or rejection of this Plan, and for purposes of
determining acceptance or rejection of this Plan by such Class under section
1129(a)(8) of the Bankruptcy Code.
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7.4 Non-consensual Confirmation.
The Debtors will request that the Bankruptcy Court confirm the Plan in
accordance with section 1129(b) of the Bankruptcy Code in view of the deemed
rejection of the Plan by Classes 8 and 9. In the event that any of Classes 3, 4,
5, 7A, 7B or 7C fail to accept the Plan, the Debtors reserve their right (i) to
modify the Plan in accordance with Section 16.2 hereof and/or (ii) to request
that the Bankruptcy Court confirm the Plan in accordance with section 1129(b) of
the Bankruptcy Code notwithstanding such lack of acceptance by finding that the
Plan provides fair and equitable treatment to any impaired Class of Claims and
Equity Interests voting to reject the Plan.
7.5 Revocation of the Plan.
Subject to Section 18.8 hereof, the Debtors reserve the right to revoke
and withdraw this Plan at any time prior to entry of the Confirmation Order. If
this Plan is so revoked or withdrawn, then it shall be deemed null and void.
SECTION VIII
MEANS OF IMPLEMENTATION OF THE PLAN
8.1 Transactions on the Effective Date.
On the Effective Date, the following shall occur (unless the HomePlace
Group, Waccamaw and the Creditors' Committee agree otherwise):
(a) The following shall be deemed to have occurred
simultaneously:
(1) the Reorganization Trustee shall assume its
obligations under the Reorganization Trust
Agreement;
(2) the Distribution (other than with respect to
the Cash Election Offer) shall occur,
whereby the New Common Stock and the New
Preferred Warrants (subject to the terms of
Section V of the Plan) are transferred to
the Reorganization Trustee in full
satisfaction of the Debtors' obligations to
all holders of Unsecured Claims and Class 7
Equity Interests;
(3) the Amended Bylaws, the Amended Certificate
of Incorporation, the Subsidiaries Amended
Bylaws, and the Subsidiaries Amended
Certificates
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of Incorporation shall become effective and
binding upon the Reorganized Debtors;
(4) the Equity Interests (including the Old
Capital Stock) shall be extinguished in
accordance with Section V hereof;
(5) the Closing of the Waccamaw Shareholder
Subscription Agreement shall occur and
shares of New Common Stock shall be
delivered to the Waccamaw Shareholder in
accordance with the terms of this Plan and
the Waccamaw Shareholder Subscription
Agreement; and
(6) The capital structure of the Combined
Company as set forth in Section 6.1.1 of the
Plan shall be in effect.
(b) The following shall occur after the events set forth
in Section 8.1(a) and shall be deemed to have
occurred simultaneously with one another:
(1) the Merger Effective Time shall occur
whereby, inter alia, the Merger shall be
effected;
(2) the Debtors shall remit to the
Reorganization Trustee Cash in an amount
sufficient to carry out the Cash Election
Offer;
(3) the Cash Election Transactions shall be
effected; and
(4) the closing of the Exit Facility shall
occur.
(c) The following shall occur after the events set forth
in Section 8.1(b): the Combined Company shall issue
the New Waccamaw Warrants to the Waccamaw
Shareholder.
In no event shall any of the foregoing events in subsections (a), (b) and (c)
occur unless all of the foregoing events in subsections (a), (b) and (c) occur
on the same Business Day.
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8.2 The Cash Election Offer for Holders of Unsecured Claims.
8.2.1 The Election by Holders of Unsecured Claims.
In addition to soliciting votes to accept or reject the Plan, the
Ballots sent to the holders of Unsecured Claims shall have the option to accept
or decline the Cash Election Offer by so indicating on their Ballots. The Cash
Election Offer shall permit each holder of an Unsecured Claim to:
(a) elect to tender 100% of such holder's Unsecured Claim in
exchange for a Cash Distribution in accordance with the Cash
Election Offer (subject to reduction in the event of an Excess
Cash Election Event),
(b) elect to tender 50% of such holder's Unsecured Claim in
exchange for a Cash Distribution in accordance with the Cash
Election Offer (subject to reduction in the event of an Excess
Cash Election Event), with the remaining fifty percent (50%)
of such Unsecured Claim receiving the Stock Distribution, once
Allowed, as provided under Section 5.2.5 of the Plan, or
(c) decline the Cash Election Offer and thereby retain the Stock
Distribution as provided under Section 5.2.5 of the Plan.
Holders of Unsecured Claims can participate in the Cash Election Offer solely to
the extent such holders elect to accept such offer on the Ballot on or before
the Voting Deadline in accordance with this Section 8.2.1. Further, if the
Tendered Amount exceeds the Cash Election Commitment Amount, then the ability of
holders of Unsecured Claims to participate in the Cash Election Offer shall be
governed by Section 8.2.3. For purposes of the Cash Election Offer only, all
holders of Unsecured Claims that do not vote to accept or reject the Plan or to
accept or reject the Cash Election Offer shall be deemed to have rejected the
Cash Election Offer.
8.2.2 Payment of Tendered Claims.
Subject to adjustment in the event of an Excess Cash Election Event in
accordance with Section 8.2.3 of the Plan, in lieu of receiving a Stock
Distribution on account of an Allowed Tendered Claim as provided under Section
5.2.5 hereof, on the Initial Distribution Date, or as soon as practicable after
such Claim becomes an Allowed Claim if the date of allowance is later than the
Initial Distribution Date, each holder of an Allowed Tendered Claim shall
receive in full satisfaction, settlement, release, and discharge of and in
exchange for such Allowed Tendered Claim a Cash payment from the Reorganization
Trustee equal to the amount of the Allowed Tendered Claim multiplied by the Cash
Election Offer Price.
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8.2.3 Allocation of Cash Election Proceeds In the Event of an Excess
Cash Election Event.
In the event that the Tendered Amount exceeds the Cash Election
Commitment Amount, the right to participate in the Cash Election Offer shall be
allocated pro rata to the holders of Tendered Claims, with such holders
receiving on account of each Tendered Claim the following:
(a) a Cash payment from the Reorganization Trustee in the
amount equal to the product obtained by: (1)
multiplying (A) the Cash Election Offer Price by (B)
the amount of the Allowed Tendered Claim, and (2)
multiplying the product obtained in (1) by the Excess
Cash Election Cash Payment Percentage, and
(b) a Stock Distribution in accordance with Section 5.2.5
of the Plan on account of an Allowed Unsecured Claim
in the amount of the Excess Cash Election Portion.
8.2.4 Mandatory Pro Rata Cash Distribution in the Event of a Cash
Election Deficiency Event.
Notwithstanding anything to the contrary, if a Cash Election Deficiency
Event occurs, holders of Non-Tendered Claims shall be deemed to have tendered a
portion of such Claims, on a pro rata basis, that in the aggregate equals the
Cash Election Deficiency Amount. Upon the occurrence of a Cash Election
Deficiency Event, Tendering Claim Holders shall receive on account of their
Tendered Claims the treatment set forth in Section 8.2.2 of the Plan.
8.2.5 Treatment of Tendering Claim Holders Holding Disputed Claims.
The Claims allowance and distribution provisions set forth in Section X
hereof shall govern each Tendered Claim that is a Disputed Unsecured Claim. In
addition to other Disputed Reserves established in accordance with Section 9.7
hereof, the Reorganization Trustee shall maintain a Disputed Reserve of Cash and
New Common Stock, as the case may be, on account of all Tendered Claims that are
Disputed Claims.
8.2.6 Potential Rejection Claimants Ability to Participate in the Cash
Election Offer.
(a) Subject to the requirement set forth in the next sentence, and
notwithstanding anything to the contrary in the Plan, Potential Rejection
Claimants may elect to participate in the Cash Election Offer based upon their
Potential Rejection Claims in accordance with the provisions of Sections 8.2.1,
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8.2.2, 8.2.3, 8.2.4 and 8.2.5 of the Plan. Each Potential Rejection Claimant can
participate in the Cash Election Offer solely to the extent such parties satisfy
both of the following requirements:
(i) file a proof of claim setting forth the amount and
bases of its Potential Rejection Claim with the
Claims Agent on or before May 26, 1999 at the
following address:
Meade Monger & Consultants Corporation
By regular mail at:
P.O. Box 780329
Dallas, Texas 75378
By hand or overnight mail at:
5735 Pineland Drive, Suite 227
Dallas, Texas 75231
Attention: Diane Peppers.
If a Potential Rejection Claimant has previously
filed a proof of Claim in these Reorganization Cases
for its Potential Rejection Claim, such proof of
Claim will satisfy this requirement and such
Potential Rejection Claimant shall not have to file
an additional proof of Claim.
(ii) notify the Claims Agent in writing on or before May
26, 1999 as to whether it is electing treatment under
Section 8.2.1(a), (b) or (c).
(b) To the extent that Potential Rejection Claimants hold Allowed
Unsecured Claims, such parties shall share pro rata in the right to participate
in the Cash Election Offer to the same extent that holders of Allowed Tendered
Claims can participate in the Cash Election Offer and subject to the same rights
and restrictions set forth in Sections 8.2.2, 8.2.3, 8.2.4 and 8.2.5 of the
Plan.
(c) To the extent that any Potential Rejection Claim is Disallowed, the
Potential Rejection Claimant shall not be entitled to receive any Cash
Distribution on account of such Claim. Pursuant to this Section 8.2.6, Potential
Rejection Claimants shall have the right to participate in the Cash Election
Offer. Section 8.2.6 shall not confer any rights upon any Potential Rejection
Claimant, to the extent such Person or Entity does not possess such right, to
participate in voting to accept or reject the Plan.
(d) The HomePlace Group reserves the right to object to any Potential
Rejection Claim.
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8.3 Funding of Cash Election.
On the Effective Date, the Combined Company shall deposit with the
Reorganization Trustee an amount of Cash and New Common Stock sufficient for the
Reorganization Trustee to make the Distributions of Cash and New Common Stock to
Tendering Claim Holders in accordance with Section 8.2 of the Plan.
8.4 The Subscription Offer
8.4.1 The Subscription Commitment by Waccamaw Shareholder for the
Purchase of Waccamaw Exclusive Right Shares.
(a) As set forth in the Waccamaw Shareholder Subscription Agreement,
the Waccamaw Shareholder shall have the obligation to make a Cash payment in the
amount of the Waccamaw Shareholder Subscription Mandatory Commitment by wire
transfer to the Combined Company on the Effective Date. Upon receipt by
HomePlace Holdings of such payment, the Waccamaw Shareholder shall purchase and
acquire the Waccamaw Shareholder Exclusive Right Shares as of the Effective
Date.
(b) To the extent that the proceeds of the Waccamaw Shareholder
Mandatory Subscription Commitment, which amount will have been deposited in its
entirety by the Combined Company with Reorganization Trustee in accordance with
Section 8.3 of the Plan, are not utilized by the Reorganization Trustee to make
distributions to Tendering Claim Holders in accordance with Section 8.2 of the
Plan, such excess funds shall be transferred to the Combined Company.
8.4.2 The Issuance of Offered Shares.
On the Effective Date, the Combined Company will issue and distribute
the Waccamaw Shareholder Exclusive Right Shares to the Waccamaw Shareholder.
8.4.3 Waccamaw Shareholder Not Entitled to Receive Subsequent
Distributions on Account of Ownership of Offered Shares of New Common Stock.
To the extent that the Waccamaw Shareholder, or any of its
successors-in-interest, have acquired Offered Shares purchased pursuant to the
Subscription Offer, such holders of Offered Shares shall not be entitled to
receive any Distributions (other than the Initial Distribution) pursuant to
Section 10.6 of the Plan on any Quarterly Distribution Date.
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8.5 Substantive Consolidation.
On the Effective Date, the Estates of the members of the HomePlace
Group will be substantively consolidated for all purposes related to the Plan,
including, without limitation, for purposes of confirmation, Distributions and
Claim determinations. The substantive consolidation of the Estates of the
members of the HomePlace Group shall have the following effects: (a) all assets
and liabilities of the Estates of the members of HomePlace Group shall be
treated as though they were assets and liabilities of one estate, (b) no
distributions shall be made under the Plan on account of intercompany Claims
among the Debtors, (c) no distributions shall be made under the Plan on account
of the Subsidiary Common Stock, (d) all guarantees by any member of the
HomePlace Group of the obligations of any other member of the HomePlace Group
and any joint or several liability of any of the Debtors shall be deemed to be
one obligation of the consolidated Estates and (e) each and every Claim filed or
to be filed in the Reorganization Cases against any of the Debtors shall be
deemed filed against the consolidated Estates, and shall be deemed to be one
Claim against and obligation of the consolidated Estates. Such substantive
consolidation shall not (other than for purposes related to the Plan and the
Distributions to be made hereunder) affect (a) the legal and corporate
structures of the Reorganized Debtors and (b) Subsidiary Common Stock.
8.6 HomePlace/Waccamaw Merger.
The Plan is to be implemented consistent with section 1123 of the
Bankruptcy Code through the effectuation of the HomePlace/Waccamaw Merger, and
the Effective Date of the Plan shall occur substantially concurrently with the
Merger Effective Time. On the Effective Date, the Debtors or the Reorganized
Debtors, as the case may be, and Waccamaw will take all such actions as may be
necessary or appropriate to effect the HomePlace/Waccamaw Merger on the terms
and subject to the conditions set forth in the Merger Agreement. Without
limiting the generality of the foregoing sentence, on the Effective Date, each
of the Debtors or the Reorganized Debtors, as the case may be, and Waccamaw will
cause the Merger Agreement or a certificate of merger conforming to the
applicable provisions of the Delaware General Corporation Law to be filed with
the Secretary of State of Delaware pursuant to applicable provisions of the
Delaware General Corporation Law and will take or cause to be taken all other
actions, including making appropriate filings or recordings, that may be
required by the Delaware General Corporation Law or other applicable law in
connection with the HomePlace/Waccamaw Merger. The Merger of Waccamaw with and
into New HomePlace shall be effective as of the Effective Date pursuant to the
Confirmation Order without any further action by the stockholders or directors
of any of the Debtors, the Debtors-in-Possession or the Reorganized Debtors.
8.7 The Reincorporation Merger.
On or as soon as practicable after the Confirmation Date, HomePlace
Holdings and New HomePlace will take all such actions as may be necessary or
appropriate to effect the Reincorporation
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Merger on the terms and subject to the conditions set forth in the
Reincorporation Merger Agreement. Without limiting the generality of the
foregoing sentence, on or as soon as practicable after the Confirmation Date,
HomePlace Holdings and New HomePlace will cause the Reincorporation Merger
Agreement or a certificate of merger conforming to the applicable provisions of
the Delaware General Corporation Law to be filed with the Secretary of State of
Delaware pursuant to applicable provisions of the Delaware General Corporation
Law and will take or cause to be taken all other actions, including making
appropriate filings or recordings, that may be required by the Delaware General
Corporation Law or other applicable law in connection with the Reincorporation
Merger. The merger of HomePlace Holdings with and into New HomePlace shall be
effective (i) as of such date pursuant to the Confirmation Order without any
further action by the stockholders or directors of any of the Debtors, the
Debtors-in-Possession or the Reorganized Debtors and (ii) prior to and
independent of the Effective Date.
8.8 The Reorganized Debtors' Obligations Under the Plan.
From and after the Effective Date, the Reorganized Debtors will perform
the obligations of the Debtors under the Plan.
8.9 Continuation of Business.
On the Effective Date, the Reorganized Debtors, through the Combined
Company, shall continue to engage in business.
8.10 Charter and Bylaws.
The Amended Bylaws and Amended Certificate of Incorporation of the
Combined Company and the Subsidiaries Amended Bylaws and the Subsidiaries
Amended Certificates of Incorporation for the Subsidiaries shall be filed as
part of the Plan Supplement and shall contain such provisions as are necessary
to satisfy the provisions of the Plan and, to the extent necessary, to prohibit
the issuance of nonvoting equity securities (other than any warrants) as
required by section 1123(a)(6) of the Bankruptcy Code, subject to further
amendment of the Amended Bylaws, the Amended Certificate of Incorporation, the
Subsidiaries Amended Bylaws and the Subsidiaries Amended Certificates of
Incorporation as permitted by applicable law. Except as otherwise provided
herein, such Amended Bylaws, Amended Certificate of Incorporation, Subsidiaries
Amended Bylaws and Subsidiaries Amended Certificates of Incorporation shall
contain such indemnification provisions applicable to the officers, directors
and employees of the Reorganized Debtors and such other Persons as may, in the
discretion of the Board of Directors of the Reorganized Debtors, be appropriate.
Each of the Amended Bylaws and the Amended Certificate of Incorporation are in
the form as agreed upon by the Debtors, the Creditors' Committee and Waccamaw,
and any modifications of the Amended Bylaws and the Amended
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Certificate of Incorporation prior to the Effective Date shall be in form and
substance acceptable to all such parties. Each of the Subsidiaries Amended
Bylaws and Subsidiaries Amended Certificates of Incorporation shall be in form
and substance acceptable to the Debtors, the Creditors' Committee and Waccamaw.
8.11 Cancellation of Equity Interests.
On the Effective Date, all existing Equity Interests shall, without any
further action, be cancelled, annulled and extinguished and any certificates
representing such Equity Interests shall be null and void.
8.12 The Board of Directors of the Reorganized Debtors.
Upon the Effective Date, the existing Board of Directors of
each Debtor shall be deemed to have resigned. The initial Board of Directors for
each of the Reorganized Debtors shall be identical and, subject to Section
8.12(a) below, shall consist of thirteen (13) directors, who will be selected
prior to the commencement of the Confirmation Hearing. A list setting forth the
identities of the thirteen members of the Board of Directors for the Combined
Company, to the extent available, shall be filed as part of the Plan Supplement,
or otherwise, in a submission to this Court on or prior to the Effective date.
The Board of Directors shall initially be comprised of:
(a) six outside directors selected by the Creditors'
Committee, subject to the consent by the Debtors as
to each proposed director, which consent shall not be
unreasonably withheld (such six directors, the "Class
I Directors"); provided, however, that the number of
Class I Directors may be reduced from six to five;
and
(b) seven directors selected by the Waccamaw Shareholder,
one of whom shall be Gregory K. Johnson, the Chief
Executive Officer of Waccamaw (such seven directors,
the "Class II Directors").
The initial term of each Class I Director shall be through the annual meeting of
stockholders of the Combined Company to be held in 2001. The initial term of
each Class II Director shall be through the annual meeting of stockholders of
the Combined Company to be held in 2000.
8.13 Operations of Debtors Between Confirmation and the Effective Date.
The Debtors shall continue to operate as Debtors-in-Possession, subject
to the supervision of the Bankruptcy Court, pursuant to the Bankruptcy Code
during the period from the Confirmation Date through and until the Effective
Date.
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8.14 Exclusivity Period.
Subject to further order from the Bankruptcy Court, the Debtors shall
retain the exclusive right to amend the Plan and solicit acceptances thereof
until the Effective Date.
8.15 Revesting of Assets.
Pursuant to section 1141(b) of the Bankruptcy Code, the property of the
Estates, the Debtors and the Reorganized Debtors shall revest in the Reorganized
Debtors on the Effective Date of the Plan. Thereafter, Reorganized Debtors may
operate their businesses and may use, acquire, and dispose of property free of
any restrictions of the Bankruptcy Code, the Bankruptcy Rules, and the
Bankruptcy Court. As of the Effective Date, all property of the Debtors and
Reorganized Debtors shall be free and clear of all Claims, Liens and interests,
except as specifically provided in the Plan or in the Confirmation Order.
Without limiting the foregoing, the Reorganized Debtors may, without application
to or approval by the Bankruptcy Court, pay Professional Fees and expenses that
the Reorganized Debtors or the Reorganization Trustee may incur after the
Effective Date.
8.16 Creditors' Committee.
The Committee shall cease to exist on the Effective Date.
8.17 Effectuating Documents; Further Transactions.
The Chairman of the Board of Directors, the President, the Chief
Operating Officer, the Chief Executive Officer, the Chief Financial Officer, or
any other appropriate officer of the Debtors or the Reorganized Debtors, as the
case may be, shall be, and hereby are, authorized to execute, deliver, file, and
record such contracts, instruments, releases, indentures, certificates, and
other agreements or documents, and take such actions as may be necessary or
appropriate to effectuate and further evidence the terms and conditions of the
Plan. The Secretary or Assistant Secretary of the Debtors shall be authorized to
certify or attest to any of the foregoing actions, if necessary.
8.18 Assumptions of Liabilities.
The Liabilities and obligations to make the Distributions as required
under Sections III, IV and V of the Plan shall be assumed by the Reorganized
Debtors, which shall have the Liability for, and obligation to make, all
Distributions of New Common Stock, New Warrants or other securities to be
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issued or distributed by the Reorganized Debtors under the Plan. The Cash
payments to be made under the Plan shall be made by the Reorganized Debtors,
except as otherwise provided in the Plan. The Reorganized Debtors shall also
assume all Liabilities and obligations to pay any expenses of the Debtors in
consummating the Plan and of the Reorganization Trustee in performing its duties
set forth in the Plan and the Reorganization Trust Agreement.
8.19 Distributions under this Plan.
On the Effective Date, the Debtors or the Reorganized Debtors,
including the Combined Company, as the case may be, shall make, or shall make
adequate reserve for, the Distributions required to be made under this Plan.
Cash necessary to make the Distributions required under this Plan (other than
the payments relating to the Cash Election Offer) shall be provided from all
excess Cash of the Combined Company (if any), the Exit Facility, or any other
source.
8.20 Substantial Consummation.
Substantial consummation of the Plan under section 1101(2) of the
Bankruptcy Code shall not be deemed to occur, the Reorganization Cases shall
remain open and not be deemed fully administered, and no final decree closing
these Reorganization Cases shall be entered pursuant to section 350(a) of the
Bankruptcy Code and Bankruptcy Rule 3022, until the Effective Date, at the
earliest.
8.21 Preservation of Causes of Action; Defenses.
Except as otherwise provided in the Plan, the Merger Agreement or any
Operative Agreement, in accordance with section 1123(b) of the Bankruptcy Code,
the Reorganized Debtors, in their capacity as successors-in-interest to the
Debtors and the Estates, shall retain and may enforce such claims, rights and
Causes of Action that are property of the Debtors or their Estates, and the
Reorganized Debtors and the Reorganization Trustee shall retain and enforce all
defenses and counterclaims to all Claims asserted against the Debtors or their
Estates, including, but not limited to, setoff, recoupment and any rights under
section 502(d) of the Bankruptcy Code, including such claims, defenses,
counterclaims and rights against National City and Maxus. The Reorganized
Debtors may pursue such claims, rights or Causes of Action, as appropriate, in
accordance with their best interests. With respect to any claims, rights and
Causes of Action under the Waccamaw Shareholder Letter that the Reorganized
Debtors succeed to as the successor-in-interest to HomePlace Holdings, the
determination after the Effective Date as to whether the Reorganized Debtors
shall pursue such claims, rights or Causes of Action shall be made solely by the
Class I Directors.
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8.22 Cancellation of Existing Securities.
Upon the Effective Date, except as otherwise provided for herein, (i)
all securities, notes, bonds, indentures, and other instruments or documents
evidencing or creating any indebtedness, equity interest or obligation of the
Debtors, except such notes or other instruments evidencing indebtedness or
obligations of the Debtors that are Reinstated under the Plan, shall be
canceled, and (ii) the obligations of the Debtors under any agreements,
indentures, or certificates of designations governing any securities, notes,
bonds, indentures, and other instruments or documents evidencing or creating any
indebtedness, equity interest or obligation of the Debtors, except such notes or
other instruments evidencing indebtedness or obligations of the Debtors that are
Reinstated under the Plan, as the case may be, shall be discharged.
8.23 Representative Creditors.
8.23.1 Powers of the Representative Creditors.
The Representative Creditors' sole powers shall be (a) to direct the
Reorganization Trustee as to how to vote any shares of New Common Stock held by
the Reorganization Trustee in any Disputed Reserves, (b) upon the resignation of
any Representative Creditor, to select a replacement Representative Creditor,
and (c) perform the duties specified for the Representative Creditors set forth
in the Reorganization Trust Agreement..
8.23.2 Quorum; Meetings; Votes.
A quorum shall consist of a majority of the then existing
Representative Creditors. No meeting of the Representative Creditors shall be
held unless a quorum is present at the beginning of any meeting. Any
Representative Creditor may call for a meeting to be convened upon notice of
such meeting being given at least two (2) Business Days prior to the proposed
date of the meeting, which notice may be given by telephone, overnight mail, or
facsimile transmission, to each of the other Representative Creditors. Meetings
shall be held in person or by telephone conference call. Any action by the
Representative Creditors shall require the affirmative vote of a majority of
those voting provided that a quorum is present at the time of the vote.
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8.23.3 Resignations; Successor Representative.
(a) Any Entity may resign as a Representative Creditor at any time. In
addition, any Representative Creditor that transfers 75% or more of its
Unsecured Claim or its New Common Stock shall promptly, upon reaching an
agreement in principle with respect to such transfer, notify in writing the
other Representative Creditors regarding such transfer. Upon consummation of the
transfer of such Unsecured Claim or New Common Stock, that Representative
Creditor shall be deemed to have resigned as a Representative Creditor.
(b) In the event that any Entity resigns as a Representative Creditor,
the remaining Representative Creditors shall select a replacement for such
Entity in accordance with requirements of Section 8.23.2, which replacement must
own shares of New Common Stock.
8.23.4 Exculpation.
The Representative Creditors, from and after the Effective Date, are
hereby exculpated by all Entities, holders of Claims and Equity Interests, and
parties in interest receiving Distributions under the Plan, from any and all
claims, Causes of Action, and other assertions of liability (including breach of
fiduciary duty) arising out of the Representative Creditors' discharge of their
powers and duties conferred upon them by the Plan or any order of the Bankruptcy
Court entered pursuant to or in furtherance of the Plan, or applicable law,
except solely for actions or omissions arising out of the Representative
Creditors' gross negligence or willful misconduct. No holder of a Claim or an
Equity Interest, or representative thereof, or successor in interest thereto,
shall have or pursue any claim or Cause of Action against the Representative
Creditors for directing the Reorganization Trustee as to how to vote any shares
of New Common Stock held by the Reorganization Trustee in any Disputed Reserve.
8.23.5 Combined Company Not Responsible for Expenses of Representative
Creditors.
The Combined Company shall not be liable or responsible for any costs
or expenses incurred by the Representative Creditors.
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SECTION IX
DISTRIBUTIONS UNDER THE PLAN
9.1 Date of Distributions.
Except as otherwise provided herein or ordered by the Bankruptcy Court,
any Distributions and deliveries to be made under the Plan shall be made on the
Initial Distribution Date or as soon as practicable thereafter. If any payment
or act under the Plan is required to be made or performed on a date that is not
a Business Day, then the making of such payment or the performance of such act
may be completed on the next succeeding Business Day, but shall be deemed to
have been completed as of the required date.
9.2 Delivery of Distributions.
Subject to Bankruptcy Rule 9010, and except as otherwise provided
herein, (a) Distributions to holders of Allowed Claims shall be made at the
address of each of such holders as set forth in the Schedules filed with the
Bankruptcy Court unless superseded by the address set forth on proofs of Claim
filed by such holders (or at the last known address of such holders if no proof
of Claim or proof of Equity Interest is filed or if the Debtors have been
notified in writing of a change of address) and (b) Distributions to holders of
Allowed Class 7 Equity Interests shall be made at the address of each of such
holders as set forth in the consolidated stockholders list maintained by
HomePlace Holdings unless superseded by the address set forth on proofs of
Equity Interests filed by such holders (or at the last known address of such
holders if no proof of Equity Interest is filed or if the Debtors have been
notified in writing of a change of address). If any Distribution to any holder
of an Allowed Unsecured Claim or an Allowed Class 7 Equity Interest is returned
as undeliverable, the Reorganization Trustee shall use reasonable efforts to
determine the current address of such holder, but no Distribution to any such
holder shall be made unless and until the Reorganization Trustee has determined
the then current address of such holder, at which time such Distribution to such
holder shall be made to such holder without interest. Amounts in respect of any
undeliverable Distributions made through the Reorganization Trustee shall be
returned to and held by the Reorganization Trustee until such Distributions are
claimed. If such Distributions are not claimed by the expiration of one year
from the Initial Distribution Date, such Distributions shall be deemed unclaimed
property under section 347(b) of the Bankruptcy Code. If no proofs of Claim or
Equity Interests are filed, and the Schedules filed with the Bankruptcy Court
fail to state addresses for holders of Allowed Claims, such Allowed Claims and
Allowed Equity Interests shall be deemed unclaimed property under section 347(b)
of the Bankruptcy Code at the expiration of one year from the Effective Date.
After such date, all unclaimed property shall be transferred from the
Reorganization Trustee to the Reorganized Debtors, and the claim of any holder
to such property shall
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be discharged and forever barred. Nothing contained in the Plan shall require
the Reorganization Trustee to attempt to locate any holder of an Allowed Claim
or an Allowed Equity Interest.
9.3 Record Date for Distributions.
9.3.1 Record Date for Equity Interests.
At the close of business on the Record Date for any Distribution, the
consolidated stockholders list for the Equity Interests shall be closed, and
there shall be no further changes in the record holders of the Equity Interests.
For any Distribution, the Reorganized Debtors, agents, servicers and
Reorganization Trustee shall have no obligation to recognize any transfer of
such Equity Interests occurring after the Record Date. For any Distribution, the
Reorganized Debtors, agents and servicers and the Reorganization Trustee shall
be entitled instead to recognize and deal for all purposes hereunder with only
those record holders stated on the consolidated stockholders list as of the
close of business on the Record Date.
9.3.2 Record Date for Holders of Claims.
Except as otherwise provided in an order of the Bankruptcy Court that
is not subject to any stay, the transferees of Claims that are transferred
pursuant to Bankruptcy Rule 3001 on or prior to the Record Date for any
Distribution will be treated as the holders of such Claims for all purposes,
notwithstanding that any period provided by Bankruptcy Rule 3001 for objecting
to such transfer has not expired by the Record Date.
9.4 Time Bar to Cash Payments.
Checks issued by either the Reorganized Debtors or the Reorganization
Trustee on account of Allowed Claims shall be null and void if not negotiated
within sixty (60) days after the date of issuance thereof. Requests for
reissuance of any check shall be made in writing directly to the Reorganized
Debtors or the Reorganization Trustee by the holder of the Allowed Claim with
respect to which such check originally was issued. Any claim in respect of such
a voided check shall be made in writing on or before the first anniversary of
the Initial Distribution Date. After such date, all claims in respect of void
checks shall be discharged and forever barred, and the proceeds of such checks
shall be unclaimed property subject to disposition in accordance with Section
9.2 of the Plan.
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9.5 Manner of Cash Payments Under the Plan.
Cash payments made pursuant to the Plan shall be in United States
dollars by checks drawn on a domestic bank selected by the Reorganized Debtors
or the Reorganization Trustee, as the case may be, or by wire transfer from a
domestic bank, at the option of the Debtors, the Reorganized Debtors, or the
Reorganization Trustee, as the case may be.
9.6 Reorganization Trustee.
The Reorganization Trustee shall be the Person or Entity selected by
the Creditors' Committee, subject to the consent by the Debtors, which consent
shall not be unreasonably withheld, and which selection is also subject to the
consent of Waccamaw, which consent shall not be unreasonably withheld, to
fulfill the obligations that the Reorganized Debtors have under the Plan with
respect to Distributions to holders of Allowed Unsecured Claims and Allowed
Equity Interests. Distributions to holders of Allowed Claims and holders of
Allowed Equity Interests shall be deemed delivered and accepted when the Cash
and/or New Common Stock to be distributed to such holders are delivered to the
Reorganization Trustee.
9.7 Disputed Reserves.
On the Initial Distribution Date, and after making all other
Distributions required to be made on such date under the Plan, the
Reorganization Trustee shall establish a separate Disputed Reserve for each of
the Classes, each of which shall be administered by the Reorganization Trustee.
From the Creditor Distributable Shares and the proceeds of the Subscription
Offer, the Reorganization Trustee shall reserve the Ratable Proportion of all
Cash and New Common Stock allocated for each Disputed Claim or such amount as
may be agreed by the holder of such Claim and the Reorganized Debtors or the
Reorganization Trustee, as the case may be (or, prior to the Effective Date, the
Debtor liable on such Claim) or as may be determined by order of the Bankruptcy
Court. From the Equity Shares and New Preferred Warrants, the Reorganization
Trustee shall reserve the Ratable Proportion of all New Common Stock and New
Preferred Warrants allocated for each Disputed Equity Interest or such amount as
may be agreed by the holder of such Equity Interest and the Reorganized Debtors
or the Reorganization Trustee, as the case may be (or, prior to the Effective
Date, HomePlace Holdings) or as may be determined by order of the Bankruptcy
Court. If the Initial Distribution Date is not the Effective Date for a
particular Class, all Cash, New Common Stock and New Preferred Warrants, as
applicable, allocable to the relevant Class hereunder shall be distributed by
the Reorganization Trustee to the relevant Disputed Reserve on or as soon as
practicable after the Effective Date. Each Disputed Reserve shall be closed and
extinguished by the Reorganized Debtors upon the receipt of a written
certification of the Reorganization Trustee that all Distributions and other
dispositions of all Cash, New Preferred Warrants and/or New Common Stock
required hereunder have been made in accordance with the terms of this Plan.
Such written certification shall be sent by the Reorganization Trustee to the
Reorganized
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Debtors within 15 days of the satisfaction of the condition set forth in the
immediately preceding sentence.
9.8 Limitations upon Funding of Disputed Reserves.
Except as expressly set forth in this Plan, the Reorganized Debtors
shall have no duty to fund the Disputed Reserves.
9.9 Tax Requirements for Income Generated by Disputed Reserves.
The Reorganization Trustee shall pay, or cause to be paid, out of the
funds held in a particular Disputed Reserve, any tax imposed by any federal,
state or local taxing authority on the income generated by the funds held in
such Disputed Reserve. The Reorganization Trustee shall also file, or cause to
be filed any tax or information return related to the Disputed Reserve that is
required by any federal, state or local taxing authority.
9.10 Estimation of Claims.
Any of the Debtors, the Reorganized Debtors or the Reorganization
Trustee may, at any time, request that the Bankruptcy Court estimate any
contingent or unliquidated Claim for which any of the Debtors is liable under
this Plan, including any Claim for taxes, to the extent permitted by section
502(c) of the Bankruptcy Code regardless of whether any of the Debtors, the
Reorganized Debtors or the Reorganization Trustee has previously objected to
such Claim or whether the Bankruptcy Court has ruled on any such objection, and
the Bankruptcy Court will retain jurisdiction to estimate any Claim at any time
during litigation concerning any objection to any Claim, including during the
pendency of any appeal relating to any such objection. In the event that the
Bankruptcy Court estimates any contingent or unliquidated Claim, that estimated
amount will constitute either the Allowed amount of such Claim or a maximum
limitation on such Claim, as determined by the Bankruptcy Court. If the
estimated amount constitutes a maximum limitation on such Claim, the Debtors,
the Reorganized Debtors or the Reorganization Trustee may elect to pursue any
supplemental proceedings to object to any ultimate allowance of such Claim. All
of the aforementioned Claims objection, estimation and resolution procedures are
cumulative and not necessarily exclusive of one another. Claims may be estimated
and subsequently compromised, settled, withdrawn or resolved by any mechanism
approved by the Bankruptcy Court.
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9.11 Distributions After Initial Distribution Date.
Distributions made after the Effective Date to holders of Claims that
are not Allowed Claims as of the Effective Date but which later become Allowed
Claims shall be deemed to have been made on the Effective Date.
9.12 Fractional Shares.
Notwithstanding any other provision of the Plan to the contrary, no
fractional shares shall be issued pursuant to the Plan. Whenever any payment of
a fraction of a share under the Plan would otherwise be required, the actual
Distribution made shall reflect a rounding of such fraction to the nearest whole
share (up or down), with half shares or less being rounded down and fractions in
excess of half of a share being rounded up.
9.13 Fractional Cents.
Notwithstanding any other provision of the Plan to the contrary, no
payment of fractional cents shall be made pursuant to the Plan. Whenever any
payment of a fraction of a cent under the Plan would otherwise be required, the
actual Distribution made shall reflect a rounding of such fraction to the
nearest whole penny (up or down), with half pennies or less being rounded down
and fractions in excess of half of a penny being rounded up.
9.14 De Minimis Distributions.
Notwithstanding anything to the contrary contained in the Plan, the
Reorganization Trustee shall not be required to distribute, and shall not
distribute, Cash to the holder of an Allowed Claim if the amount of Cash to be
distributed on account of such Claim is less than $15. Any holder of an Allowed
Claim on account of which the amount of Cash to be distributed is less than $15
shall have such Claim discharged and shall be forever barred from asserting any
such Claim against the Debtors, the Reorganized Debtors or their respective
property. Any Cash not distributed pursuant to this provision shall be the
property of the Reorganized Debtors, free of any restrictions thereon, and any
such Cash held by the Reorganization Trustee shall be returned to the
Reorganized Debtors.
9.15 Interest on Claims.
Except as specifically provided for in the Plan or the Confirmation
Order, interest shall not accrue on Claims, and no holder of a Claim shall be
entitled to interest accruing on or after the Petition
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Date on any Claim. Interest shall not accrue or be paid upon any Disputed Claim
in respect of the period from the Petition Date to the date a final Distribution
is made thereon if and after such Disputed Claim becomes an Allowed Claim.
Except as expressly provided herein, no prepetition Claim shall be Allowed to
the extent that it is for postpetition interest or other similar charges.
9.16 No Distribution in Excess of Allowed Amount of Claim.
Notwithstanding anything to the contrary herein, no holder of an
Allowed Claim shall receive in respect of such Claim any Distribution (of a
value set forth herein or in the Disclosure Statement) in excess of the Allowed
Amount of such Claim.
9.17 Ordinary Course Liabilities.
Subject to the terms hereof, holders of Claims against the Debtors
(other than Professional Fees) based on Liabilities incurred after the Petition
Date in the ordinary course of the Debtors' businesses shall not be required to
file any request for payment of such Claims. Such Claims shall be assumed and
paid by the Reorganized Debtors in accordance with the terms of this Plan,
without any further action by the holders of such Claims.
9.18 Setoffs.
Except as otherwise provided in this Plan, the Debtors, the Reorganized
Debtors and/or the Reorganization Trustee, as the case may be, may, but shall
not be required to, set off against any Claim and the payments to be made
pursuant to the Plan in respect of such Claim, any Claims of any nature
whatsoever the Debtors may have against the holder of such Claim, but neither
the failure to do so nor the allowance of any Claim under the Plan shall
constitute a waiver or release by the Debtors, the Reorganized Debtors or the
Reorganization Trustee of any right of setoff any of them may have against the
holder of such Claim.
9.19 Payment of Taxes on Distributions Received Pursuant to Plan.
All Persons and Entities that receive Distributions under the Plan
shall be responsible for reporting and paying, as applicable, taxes on account
of such Distributions.
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SECTION X
DISPUTED CLAIMS UNDER THE PLAN
10.1 Objection Deadline.
As soon as practicable, but in no event later than six (6) months after
the Effective Date, unless otherwise ordered by the Bankruptcy Court, objections
to Claims shall be filed with the Bankruptcy Court and served upon the holders
of each such Claim to which objections are made.
10.2 Prosecution of Objections after the Effective Date.
On and after the Effective Date, except as the Bankruptcy Court may
otherwise order, (a) the filing, litigation, settlement, or withdrawal of all
objections to Unsecured Claims, including pending objections, shall be the
responsibility of the Reorganization Trustee and (b) the filing, litigation,
settlement, or withdrawal of all objections to all other Claims, including
pending objections, shall be the responsibility of the Reorganized Debtors. Any
Claim, other than a Claim for Professional Fees, that is not an Allowed Claim
shall be determined, resolved, or adjudicated in accordance with the Claims
Procedure Order, which after the Effective Date shall apply, mutatis mutandi,
with the Reorganization Trustee succeeding to the rights and responsibilities of
the Debtors thereunder and with no notice requirements to the Creditors'
Committee. Prior to the Effective Date, the filing, litigation, settlement, or
withdrawal of all objections shall be the responsibility of the Debtors.
10.3 No Distributions Pending Allowance.
Notwithstanding any other provision hereof, if any portion of a Claim
is a Disputed Claim, no payment or Distribution provided hereunder shall be made
on account of the portion of such Claim that is a Disputed Claim unless and
until such Disputed Claim becomes an Allowed Claim, but the payment or
Distribution provided hereunder shall be made on account of the portion of such
Claim that is an Allowed Claim.
10.4 Withholding of Allocated Distributions.
The Reorganization Trustee shall withhold from the property to be
distributed on the Initial Distribution Date under the Plan an amount sufficient
to be distributed on account of Disputed Claims, which amount shall be deposited
in the applicable Disputed Reserve.
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10.5 Initial Distribution When a Disputed Claim Becomes an Allowed
Claim.
Distributions to each holder of a Disputed Claim, to the extent that
such Claim ultimately becomes an Allowed Claim (and to the extent that the
holder of such Claim has not received prior Distributions on account of such
Claim), shall be made in accordance with the provisions of this Plan governing
the Class of Claims in which such Claim is classified. On the first Business Day
after the end of each quarterly calendar period (i.e., March 31, June 30,
September 30 and December 31 of each calendar year) immediately following the
applicable Initial Distribution Date, or as soon thereafter as practicable (the
"Quarterly Distribution Date"), the Reorganization Trustee shall make (a)
Ratable Proportion Distributions or other Distributions in accordance with the
provisions of this Plan of Cash or New Common Stock reserved for any Disputed
Claim that has become an Allowed Claim during the preceding quarterly period to
the holder of such Allowed Claim (to the extent that the holder of any such
Claim has not received prior distributions on account of such Claim) and (b)
Ratable Proportion Distributions or other Distributions in accordance with the
provisions of this Plan of New Common Stock and New Preferred Warrants reserved
for any Disputed Equity Interest that has become an Allowed Equity Interest
during the preceding quarterly period to the holder of such Equity Interest (to
the extent that the holder of any such Equity Interest has not received prior
distributions on account of such Equity Interest). Each holder of a Disputed
Claim or Disputed Equity Interest that ultimately is Allowed will also be
entitled to receive the Ratable Proportion of any dividends, other
distributions, or Cash Investment Yield received on and after the Effective Date
on account of the shares of the New Common Stock or Cash, as the case may be,
distributed to such holder on account of its Allowed Claim or Equity Interest
(less any taxes paid by the Reorganization Trustee thereon).
10.6 Additional Quarterly Distributions on Account of Previously
Allowed Claims.
(a) On each Quarterly Distribution Date, the Reorganization Trustee
shall distribute to each holder of a previously Allowed Unsecured Claim or
Allowed Class 7 Equity Interest, or such holder's successor in interest, on
account of such Allowed Claim or Allowed Equity Interest an amount of Cash or
New Common Stock, as the case may be, equal to: (i) the Distribution from the
relevant Disputed Reserve that such claimant would have received in accordance
with the Plan had it not received any prior Distributions in respect of its
Allowed Claim or Allowed Equity Interest, less (ii) the total amount of any
Distributions previously received in respect of its Allowed Claim or Allowed
Equity Interest, plus (iii) its Ratable Proportion of the Cash Investment Yield,
if applicable. Such additional Quarterly Distribution shall include any Creditor
Distributable Shares as of such date that are not Reserved Shares and were not
previously distributed to holders of Allowed Claims or Allowed Equity Interests.
Such Additional Quarterly Distributions shall continue until the relevant
Disputed Reserve is depleted of Cash or New Common Stock held in such Disputed
Reserve. Notwithstanding anything to the contrary herein, no Distribution shall
be made on any Quarterly Distribution Date unless the aggregate Distribution on
such Quarterly Distribution Date would be in excess of $20,000 in value (as such
value is set forth herein and/or in the Disclosure Statement). The restriction
on Additional Quarterly Distributions hereunder imposed by the immediately
preceding sentence shall no longer apply as of the
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date on which all Disputed Claims in the relevant Class have been resolved. Each
such Distribution shall also include, on the basis of the amount so distributed,
each holder's Ratable Proportion of any dividends or other Distributions
received on and after the Effective Date on account of the shares of the New
Common Stock distributed to each holder receiving a Distribution on a Quarterly
Distribution Date on account of its Allowed Claim.
(b) Notwithstanding anything to the contrary herein, the Reorganization
Trustee shall include in its Distributions the shares of Reserved Stock relating
to any Disallowed Claim to the extent that the aggregate amount of shares of New
Common Stock distributed to holders of Allowed Claims and Allowed Class 7 Equity
Interests pursuant to Section V of the Plan does not exceed the Distributable
Shares.
SECTION XI
THE REORGANIZATION TRUST; RIGHTS AND OBLIGATIONS OF THE REORGANIZATION TRUSTEE
11.1 Creation of Reorganization Trust.
As soon as practicable after entry of the Confirmation Order and prior
to the Effective Date, the Reorganization Trust shall be created and
established.
11.2 Purposes of the Reorganization Trust.
The Reorganization Trust will be organized for the primary purposes of
resolving all Disputed Unsecured Claims and Disputed Equity Interests in
accordance with the Plan and making Distributions on account of Allowed
Unsecured Claims and on account of Allowed Class 7 Equity Interests contemplated
by the Plan. The Reorganization Trustee will make continuing efforts to dispose
of the assets of the Reorganization Trust and not unduly prolong the duration of
the Reorganization Trust.
11.3 Exculpation.
The Reorganization Trustee, from and after the Effective Date, is
hereby exculpated by all Persons, holders of Claims and Equity Interests,
entities, and parties in interest receiving Distributions under the Plan, from
any and all claims, Causes of Action, and other assertions of liability arising
out of the Reorganization Trustee's discharge of the powers and duties conferred
upon it by the Plan or any order of the Bankruptcy Court entered pursuant to or
in furtherance of the Plan, or applicable law, except solely for actions or
omissions arising out of the Reorganization Trustee's gross negligence,
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willful misconduct or breach of its fiduciary duties and except as may otherwise
be provided in the Reorganization Trust Agreement. No holder of a Claim or an
Equity Interest, or representative thereof, shall have or pursue any claim or
Cause of Action (a) against the Reorganization Trustee for making Distributions
in accordance with the Plan, or for implementing the provisions of the Plan, or
(b) against any holder of a Claim for receiving or retaining payments or other
Distributions as provided for by the Plan.
11.4 Powers of the Reorganization Trustee.
Pursuant to the terms and provisions of the Reorganization Trust
Agreement, the Reorganization Trustee shall be empowered and authorized to (a)
take all steps and execute all instruments and documents necessary to effectuate
the Plan; (b) object, prosecute objections, litigate, settle and resolve issues
with respect to Disputed Unsecured Claims and Disputed Equity Interests in
accordance with the Plan; (c) make Distributions with respect to Allowed
Unsecured Claims and Allowed Class 7 Equity Interests as contemplated by the
Plan; (d) comply with the Plan and the obligations thereunder; (e) employ,
retain, or replace professionals to represent it with respect to its
responsibilities; (f) vote the Reserved Shares either (i) as directed in writing
by the Representative Creditors or (ii) if the Representative Creditors have not
directed the Reorganization Trustee on how to vote the Reserved Shares, as
directed pursuant to an order of the Bankruptcy Court; (g) exercise such other
powers as may be vested in the Reorganization Trustee pursuant to order of the
Bankruptcy Court or pursuant to the Plan, or as the Reorganization Trustee deems
to be necessary and proper to carry out the provisions of the Plan; (h)
establish and maintain the various Disputed Reserves as required by the Plan;
and (i) invest any Cash held by the Reorganization Trustee pending distribution
in accordance with the provisions of this Plan and the Reorganization Trust
Agreement, including any Cash received by the Reorganization Trustee on account
of dividends and other distributions on New Common Stock, which investment shall
be in a manner consistent with the Reorganization Trustee's investment and
deposit guidelines set forth in Section 11.6 hereof. The Reorganization Trustee
shall perform the foregoing functions in accordance with this Plan and the
Reorganization Trust Agreement. For purposes of exercising its powers, the
Reorganization Trustee shall be deemed to be a representative of the Estates
pursuant to section 1123(b)(3)(B) of the Bankruptcy Code.
11.5 Duties of the Reorganization Trustee.
Pursuant to and subject to the terms and provisions of (and except as
may otherwise be provided in) the Reorganization Trust Agreement, the
Reorganization Trustee shall have the duties of:
(a) Carrying out the provisions of the Plan, which shall include taking
or not taking any action which the Reorganization Trustee deems to be in
furtherance of the Plan, including, from the date of the Reorganization
Trustee's appointment, resolving Disputed Unsecured Claims and Disputed Equity
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Interests, making payments, Distributions and conveyances and effecting other
transfers necessary in furtherance of the Plan;
(b) Managing property to be distributed in a manner designed to
effectuate the Plan (including voting the Reserved Shares either (i) as directed
in writing by the Representative Creditors or (ii) if the Representative
Creditors have not directed the Reorganization Trustee on how to vote the
Reserved Shares, as directed pursuant to an order of the Bankruptcy Court); and
(c) Making quarterly reports to the Combined Company regarding the
Distributions to be made to the holders of Allowed Claims and Allowed Class 7
Equity Interests, which reports shall be filed with the Bankruptcy Court.
11.6 Investment Guidelines for Reorganization Trustee.
The Reorganization Trustee shall invest any Cash held by the
Reorganization Trustee pending the distribution thereof pursuant to the
provisions hereof in accordance with the investment guidelines set forth in the
Reorganization Trust Agreement.
11.7 The Reorganization Trustee.
(a) There shall be only one Reorganization Trustee at any
time.
(b) The Reorganization Trustee shall serve for the duration of
the Reorganization Trust, subject to earlier resignation, incapacity or removal
as provided in the Reorganization Trust Agreement.
11.8 Combined Company Responsible for Expenses of Reorganization
Trustee.
The Combined Company shall be liable and responsible for any costs or
expenses incurred by the Reorganization Trustee in performing its duties under
the Plan or the Reorganization Trust Agreement.
11.9 General Provisions.
(a) The Reorganization Trust shall be irrevocable.
(b) The Reorganization Trust shall terminate upon the date
that is the later of the date on which (i) all Disputed Claims have
been resolved or (ii) all Distributions with respect to Allowed
Unsecured Claims and Allowed Class 7 Equity Interests to be made
pursuant to the Plan have been completed.
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(c) Beneficial interests in the Reorganization Trust shall not
be assignable, except to the extent permitted by the Reorganization
Trust Agreement.
(d) All functions and procedures in respect of the
Reorganization Trust, including the selection of any successor
Reorganization Trustee, powers and duties of the Reorganization
Trustee, and rights of beneficiaries not expressly stated in the Plan
shall be governed by the Reorganization Trust Agreement.
SECTION XII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES UNDER THIS PLAN
12.1 All Executory Contracts and Unexpired Leases Rejected if Not
Listed on Assumption Schedule.
Except as otherwise provided herein or pursuant to a Final Order of the
Bankruptcy Court approving the assumption of any executory contract or unexpired
lease, effective as of the Effective Date, all executory contracts and unexpired
leases of the Debtors not specifically listed on the Assumption Schedule shall
be deemed to be automatically rejected as of the Confirmation Date. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving
such rejections pursuant to section 365(a) of the Bankruptcy Code as of the
Confirmation Date.
12.2 Assumed Executory Contracts and Unexpired Leases.
All executory contracts and unexpired leases of the Debtors
specifically listed on the Assumption Schedule shall be deemed automatically
assumed by the Debtor that is a party thereto upon the Effective Date. The
Confirmation Order shall constitute an order of the Bankruptcy Court approving
such assumptions pursuant to section 365(a) of the Bankruptcy Code. Subject to
the last sentence of this subsection 12.2 of the Plan, the Debtors may at any
time on or before the Confirmation Date (or, with respect to any contracts and
unexpired leases relating to the Maxus/National City Financing Transactions,
during the time periods set forth in Section 12.8 of the Plan) amend the
Assumption Schedule to delete therefrom or add thereto any executory contract or
unexpired lease, in which event such executory contract or unexpired lease shall
be deemed to be rejected or assumed, respectively, as of the Effective Date. The
Debtors shall provide notice of any amendments to the Assumption Schedule to the
parties to the executory contracts or unexpired leases affected thereby, counsel
to the Creditors' Committee, and to parties who have requested notice pursuant
to Bankruptcy Rule 2002. The fact that any contract or lease is listed on the
Assumption Schedule shall not constitute or be construed to constitute an
admission that such contract or lease is an executory contract or unexpired
lease within the meaning of section 365 of the Bankruptcy Code or that the
Debtors or any successor in interest to the
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Debtors has any liability thereunder. Each assumed executory contract and
unexpired lease of the Debtors that relates to the use or occupancy of real
property shall include (a) all modifications, amendments, supplements,
restatements, or other agreements made directly or indirectly by any agreement,
instrument, or other document that in any manner affects such executory contract
or unexpired lease, and (b) all executory contracts or unexpired leases
appurtenant to the premises, including all easements, licenses, permits, rights,
privileges, immunities, options, rights of first refusal, powers, uses,
usufructs, reciprocal easement agreements, vaults, tunnel or bridge agreements,
or franchises, and any other interests in real estate or rights in rem related
to such premises, unless any of the foregoing agreements has been rejected
pursuant to a Final Order of the Bankruptcy Court. The Debtors shall list only
such executory contracts and unexpired leases on the Assumption Schedule as
agreed to by Waccamaw and shall include in the Assumption Schedule any and all
executory contracts and unexpired leases which Waccamaw requests in writing to
include on the Assumption Schedule.
12.3 Payments Related to Assumption of Executory Contracts and
Unexpired Leases.
Any monetary amounts by which each executory contract and unexpired
lease to be assumed under the Plan may be in default shall be satisfied by Cure,
under section 365(b)(1) of the Bankruptcy Code. In the event of a dispute
regarding (i) the nature or the amount of any Cure, (ii) the ability of
Reorganized Debtors to provide "adequate assurance of future performance"
(within the meaning of section 365 of the Bankruptcy Code) under the contract or
lease to be assumed, or (iii) any other matter pertaining to assumption, Cure
shall occur following the entry of a Final Order resolving the dispute.
12.4 Bar Date for Rejection Damages.
If the rejection by the Debtors, pursuant to the Plan, of an executory
contract or unexpired lease results in a Claim or Administrative Expense Claim,
then such Claim or Administrative Expense Claim shall be discharged and barred
forever and shall not be enforceable against the Debtors, the Reorganized
Debtors, the Reorganization Trustee or any of their property unless a proof of
Claim or proof of Administrative Expense Claim is filed with the clerk of the
Bankruptcy Court and served upon, as the case may be, counsel to the Debtors,
counsel to the Reorganized Debtors, counsel to the Reorganization Trustee and
counsel to the Creditors' Committee within thirty (30) days after the earlier to
occur of (a) the Confirmation Date and (b) the entry of an order by the
Bankruptcy Court authorizing rejection of a particular executory contract or
lease.
12.5 Assignment of Executory Contracts and Unexpired Leases to Combined
Company.
On the Effective Date, each of the executory contracts and unexpired
leases that is being assigned by HomePlace Holdings pursuant to this Plan, or
that previously has been assumed by
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HomePlace Holdings pursuant to a Final Order, shall be deemed to have been
assigned to the Combined Company. The Confirmation Order shall approve such
assignments pursuant to section 365 of the Bankruptcy Code.
12.6 Compensation and Benefit Programs.
To the extent expressly provided under Sections 9.01 and 9.02 of the
Merger Agreement, (i) all employment and severance practices and policies, and
(ii) all compensation and benefit plans, policies, and programs of the Debtors
applicable to their directors, officers or employees, are treated as executory
contracts under the Plan and are hereby assumed pursuant to sections 365(a) and
1123(b)(2) of the Bankruptcy Code. Notwithstanding anything to the contrary
contained in the HomePlace Group DIP Employee Retention Plan, an employee of the
Debtors or the Reorganized Debtors who is terminated as of the Effective Date
shall be entitled to severance and other benefits as if such termination
occurred prior to the Effective Date.
12.7 Retiree Benefits.
Payments, if any, due to any person for the purpose of providing or
reimbursing payments for retired employees and their spouses and dependents for
medical, surgical, or hospital care benefits, or benefits in the event of
sickness, accident, disability, or death under any plan, fund, or program
(through the purchase of insurance or otherwise) maintained or established in
whole or in part by the Debtors prior to the Petition Date shall be continued
for the duration of the period the Debtors have obligated themselves to provide
such benefits.
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12.8 Treatment of Maxus/National City Financing Transactions If
Determined to be Unexpired Leases.
To the extent that the Bankruptcy Court determines by a Final Order
that the Maxus/National City Financing Transactions constitute unexpired leases
under section 365 of the Bankruptcy Code (such Final Order, the "Maxus/National
City Order"), such leases under the Maxus/National City Financing Transactions
shall be treated in accordance with Section 12.2 and 12.3 of the Plan, provided,
however, that in the event of such Final Order (notwithstanding the time periods
set forth in Section 12.2 of the Plan) the determination as to whether to assume
or reject the executory contracts or unexpired leases relating to the
Maxus/National City Financing Transactions will be made within twenty (20) days
after the entry of the Maxus/National City Order (the "Maxus/National City
Assumption Deadline"). The time under section 365(d) of the Bankruptcy Code to
assume, assign or reject executory contracts and unexpired leases relating to
the Maxus/National City Financing Transactions is hereby extended to the date
the Bankruptcy Court finally adjudicates a motion made prior to the
Maxus/National City Assumption Deadline. To the extent that the HomePlace Group,
or the Reorganized Debtors, as the case may be, assumes the contracts relating
to the Maxus/National City Financing Transactions pursuant to the preceding
sentence, the Confirmation Order shall constitute an order of the Bankruptcy
Court approving such assumptions, pursuant to section 365(a) of the Bankruptcy
Code, and such contracts shall be deemed automatically assumed as of the
Effective Date. With the consent of Waccamaw, the Debtors may elect at any time
prior to entry of the Maxus/National City Order to reject one or more of such
contracts or leases, in which event such unexpired contract(s) or lease(s) shall
be deemed to be rejected as of the Confirmation Date. The Debtors shall provide
notice of any amendments to this provision to the parties to unexpired leases or
contracts affected thereby, counsel to the Creditors' Committee, and to parties
who have requested notice pursuant to Bankruptcy Rule 2002. If the rejection by
the Debtors, pursuant to this Section 12.8 of an unexpired lease or contract
results in a Claim, then such Claim shall be discharged and barred forever and
shall not be enforceable against the Debtors or the Reorganized Debtors, or any
of their property unless a proof of Claim is filed with the clerk of the
Bankruptcy Court and served upon counsel to the Debtors and counsel to the
Creditors' Committee or counsel to the Reorganization Trustee, as the case may
be, within thirty (30) days after the earlier to occur of (a) the Confirmation
Date and (b) the entry of an order by the Bankruptcy Court authorizing rejection
of a particular lease or contract.
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SECTION XIII
CONDITIONS PRECEDENT TO THE
CONFIRMATION DATE AND THE EFFECTIVE DATE
13.1 Conditions Precedent to the Confirmation of the Plan.
The following are conditions to Confirmation of the Plan that must be
satisfied unless waived in accordance with Section 13.3 of the Plan:
(a) Entry of the Confirmation Order. The Confirmation Order shall
be in form and substance reasonably acceptable to the Debtors
and Waccamaw, which shall, among other things:
(i) decree that the assets of the Reorganized Debtors
shall be free and clear of all Claims, Liens and
encumbrances (except any Liens granted to secure the
Exit Facility);
(ii) decree that the Confirmation Order shall supersede
any Bankruptcy Court orders issued prior to the
Confirmation Date that may be inconsistent with the
Confirmation Order;
(iii) decree that all transfers of assets of the Debtors
contemplated under this Plan, and the transfer of
equity of Reorganized Debtors contemplated under this
Plan, shall be free and clear of all Claims, and all
Liens and all encumbrances against such assets and
equity;
(iv) authorize the implementation of this Plan in
accordance with its terms;
(v) provide that any transfers effected or mortgages
entered into or to be effected or entered into under
this Plan, including the mortgages to secure
Reorganized Debtors' obligations under the Exit
Facility, shall be and are exempt from any state,
city or other municipality transfer taxes, mortgage
recording taxes and any other stamp or similar tax
under section 1146(c) of the Bankruptcy Code;
(vi) approve the other settlements, transactions and
agreements to be effected pursuant to this Plan in
all respects;
(vii) provide that all executory contracts or unexpired
leases assumed by the Debtors during these
Reorganization Cases or under the Plan shall be
assigned and transferred to, and remain in full force
and effect for the benefit of, the Reorganized
Debtors notwithstanding any provision in such
contract or lease (including those described in
sections 365(b)(2) and (f) of the Bankruptcy Code)
that prohibits such assignment or transfer or that
enables or requires termination of such contract or
lease; and
(viii) provide that the transfers of property by the Debtors
to the Reorganized Debtors (A) are or shall be legal,
valid, and effective transfers of property, (B) vest
or shall
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vest the Reorganized Debtors with good title to such
property free and clear of all Liens, Claims,
encumbrances, and interests, except as expressly
provided in the Plan or Confirmation Order, (C) do
not and shall not constitute avoidable transfers
under the Bankruptcy Code or under applicable
bankruptcy or non-bankruptcy law, and (D) do not and
shall not subject the Reorganized Debtors to any
liability by reason of such transfer under the
Bankruptcy Code or under applicable non-bankruptcy
law, including, without limitation, any laws
affecting successor or transferee liability;
(ix) find that the Plan does not provide for the
liquidation of all or substantially all of the
property of the Debtors and its Confirmation is not
likely to be followed by the liquidation of the
Reorganized Debtors or the need for further financial
reorganization;
(x) determine that any objection, not previously
withdrawn or settled, to the adequacy of the
information contained in the Disclosure Statement is
overruled, and the information contained in the
Disclosure Statement was adequate for the purpose of
soliciting Ballots for Confirmation of the Plan;
(xi) find that the Plan complies with all applicable
provisions of the Bankruptcy Code, including that the
Plan was proposed in good faith and that the
Confirmation Order was not procured by fraud;
(xii) except as expressly provided in this Plan, provide
that all Equity Interests shall be extinguished and
cancelled effective upon the Effective Date; and
(xiii) determine that the substantive consolidation of the
Debtors as provided in the Plan is approved and
authorized, and such substantive consolidation is in
the best interests of the Estates.
(b) Exit Facility. A binding Exit Facility Commitment Letter, on
terms reasonably acceptable to the Debtors and Waccamaw, shall
have been obtained and shall not have been terminated, and the
lenders committing to provide such financing must be
reasonably acceptable to the Debtors and Waccamaw.
(c) Finality of Disclosure Statement Approval Order. The
Disclosure Statement Approval Order shall have been entered
and be a Final Order.
(d) Merger Agreement. The Bankruptcy Court shall have entered an
order (which order may be the Confirmation Order) approving
the Merger Agreement, which agreement shall have been executed
and delivered, shall be in effect and shall not have been
terminated, and authorizing all actions necessary for the
effectuation thereof.
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13.2 Conditions Precedent to the Effective Date of the Plan.
The following are conditions that must be satisfied on or before the
Effective Date, each of which must be satisfied unless waived in accordance with
Section 13.3 of the Plan:
(a) Finality of the Confirmation Order. The Confirmation Date
shall have occurred and the Confirmation Order shall have
become a Final Order.
(b) Closing of the Exit Facility. The Exit Facility shall have
closed, or shall be closed concurrently with the Effective
Date of this Plan, with the terms and amount reasonably
acceptable to the Debtors and Waccamaw, and the lenders
providing such financing must be reasonably acceptable to the
Debtors and Waccamaw.
(c) Conditions to the Confirmation Date Remain Satisfied. All
conditions precedent to the Confirmation Date have been
satisfied and continue to be satisfied.
(d) Property Transfers. The Bankruptcy Court shall have entered a
Final Order (which may be the Confirmation Order) decreeing
that all transfers of property by any Debtor (i) are or will
be legal, valid and effective transfers of property; (ii) vest
or will vest in the transferee thereof with good title to such
property free and clear of all Liens, Claims, and interests,
except as expressly provided in such Plan; (iii) do not and
will not constitute avoidable transfers under Bankruptcy Code
or under applicable nonbankruptcy law; and (iv) do not and
will not subject the applicable transferee to any liability by
reason of such transfer under the Bankruptcy Code or under
applicable nonbankruptcy law, including, without limitation,
any laws affecting successor or transferee liability.
(e) Discharge of Debtors. Except with respect to obligations
specifically contemplated by this Plan, the order approving
the Exit Facility and any Administrative Expense Claims
incurred postpetition by the Debtors-in-Possession in the
ordinary course of their businesses or any Administrative
Expense Claims arising pursuant to postpetition agreements or
transactions entered into by the Debtors-in-Possession with
Bankruptcy Court approval, the Bankruptcy Court shall have
entered a Final Order (which may be the Confirmation Order)
decreeing that the Debtors are discharged effective on the
Effective Date (in accordance with this Plan) from any Claims
and any "debts" (as that term is defined in section 101(12)
the Bankruptcy Code), and the Debtors' liability in respect
thereof is extinguished completely, whether reduced to
judgment or noncontingent, asserted or unasserted, fixed or
not, matured or unmatured, disputed or undisputed, legal or
equitable or known or unknown that arose from any agreement of
the Debtors entered into or obligation of such Debtor incurred
before the Effective Date, or from any conduct of either of
the Debtors prior to the Effective Date, or whether such
interest accrued before or after the Commencement Date.
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(f) Execution of Documents. All actions and documents specifically
referenced in the Plan and the Merger Agreement to implement
the provisions of this Plan to be effectuated on or prior to
the Effective Date shall be reasonably satisfactory to the
Debtors and Waccamaw, and the documents necessary to implement
the HomePlace/Waccamaw Merger and the other Plan Transactions,
as specifically set forth herein and in the Merger Agreement,
including the Cash Election Offer, shall be reasonably
satisfactory to the Debtors and Waccamaw, and such actions and
documents shall have been effected or executed and delivered.
(g) The Effectuation of the Reincorporation Merger. The
Reincorporation Merger Agreement shall have been executed,
delivered and the articles of merger shall have been filed
with the secretary of state of Delaware and the
Reincorporation Merger shall have been effectuated at least
six (6) Business Days prior to the Effective Date of the Plan.
(h) The Effectuation of the HomePlace/Waccamaw Merger, the Cash
Election Transactions and the other Plan Transactions. The
Merger Agreement shall have been executed, delivered and the
articles of merger shall have been filed with the secretary of
state of Delaware and the HomePlace/Waccamaw Merger, the Cash
Election Transactions and the other Plan Transactions shall
have been effectuated, or effectuated contemporaneously with
the Effective Date of the Plan.
(i) Amended Charter Documents. The Reorganized Debtors'
certificates of incorporation and bylaws shall have been
amended as provided in this Plan.
13.3 Waiver of Conditions Precedent.
Each of the conditions precedent in Section 13.1(c) hereof may be
waived or modified, in whole or in part by the Debtors (upon the Debtors'
providing five days' written notice to Waccamaw and the Creditors' Committee).
Each of the conditions precedent in Sections 13.1(a), (b) and (d) hereof may be
waived or modified, in whole or in part, by written agreement jointly by the
Debtors and Waccamaw (upon the Debtors' providing five (5) days' written notice
to the Creditors' Committee). Each of the conditions precedent in Section 13.2
hereof may be waived or modified, in whole or in part, by written agreement
jointly by the Debtors and Waccamaw (upon the Debtors' providing five (5) days'
written notice to the Creditors' Committee), provided, however, that the
condition precedent contained in Section 13.2(f) cannot be waived without also
obtaining the written consent of the Creditors' Committee. Any such waiver or
modification of a condition precedent in Sections 13.1 and 13.2 hereof may be
effected at any time, without any other notice, without leave or order of the
Bankruptcy Court and without any other formal action.
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SECTION XIV
EFFECT OF CONFIRMATION
14.1 Reorganized Debtors' Authority.
Until the Effective Date, the Bankruptcy Court shall retain custody and
jurisdiction of the Debtors, their properties, interests in property and
operations. On the Effective Date, the Reorganized Debtors, their properties and
interests in property and operations (other than the New Common Stock and Cash
to be distributed pursuant to the Plan) shall be released from the custody and
jurisdiction of the Bankruptcy Court, except as provided in Section 16.1 hereof.
14.2 Vesting and Liens.
On the Effective Date, all property of the Debtors will be vested in
the Reorganized Debtors free and clear of all Liens (except for the Liens
granted to secure the Exit Facility or as expressly provided herein).
14.3 Discharge of the Debtors.
(a) Scope. Except as otherwise provided in the Plan, the Confirmation
Order (including any right to receive Distributions under the Plan), the Merger
Agreement, or the Exit Facility, in accordance with section 1141(d)(1) of the
Bankruptcy Code, when the Confirmation Order becomes a Final Order, the Plan and
the Confirmation Order shall discharge, effective as of the Effective Date, all
debts of, Claims against, Liens on, and Equity Interests in each of the Debtors,
their assets, or properties, which debts, Claims, Liens, and Equity Interests
arose at any time before the entry of the Confirmation Order. The discharge of
the Debtors shall be effective as to each Claim or Equity Interest, regardless
of whether a proof of Claim or Equity Interest therefor was filed, whether the
holder thereof votes to accept the Plan, or whether the Claim or Equity Interest
is an Allowed Claim or an Allowed Equity Interest. On the Effective Date, as to
every discharged Claim and Equity Interest, any holder of such Claim or Equity
Interest (including, without limitation, any options to purchase Old Capital
Stock) shall be precluded from asserting against any Reorganized Debtors or any
Debtor formerly obligated with respect to such Claim or Equity Interest, or
against such the Reorganized Debtors' or the Debtor's assets or properties, any
other or further Claim or Equity Interest based upon any document, instrument,
act, omission, transaction, or other activity of any kind or nature that
occurred before the Confirmation Date.
(b) Injunction. Except as otherwise provided in the Plan or
Confirmation Order (including any right to receive Distributions under the
Plan), as of the Effective Date, all entities that have held, currently hold or
may hold a Claim or other debt or liability that is discharged or an Equity
Interest or other right of an equity security holder that is terminated pursuant
to the terms of the Plan, are
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permanently enjoined from taking any of the following actions on account of any
such discharged Claims, debts or liabilities or terminated Equity Interests or
rights: (1) commencing or continuing in any manner any action or other
proceeding against any of the Debtors, the Reorganized Debtors, the Combined
Company, New HomePlace, Waccamaw, the Creditors' Committee and the members
thereof, the Unofficial Equity Committee and the members thereof, or any of
their respective property, officers, directors, agents, employees and
representatives and others including (without limitation) professional persons
retained by the Debtors, the Creditors' Committee, the Unofficial Equity
Committee, the Combined Company, New HomePlace, and Waccamaw; (2) enforcing,
attaching, collecting or recovering in any manner any judgment, award, decree or
order against the any of the Debtors, the Reorganized Debtors, the Creditors'
Committee and the members thereof, the Unofficial Equity Committee and the
members thereof, the Combined Company, New HomePlace, Waccamaw or any of their
respective property, current and former officers, directors, agents, employees
and representatives and others including (without limitation) professional
persons retained by the Debtors; (3) creating, perfecting or enforcing any lien
or encumbrance against any of the Debtors, the Reorganized Debtors, the
Creditors' Committee and the members thereof, the Unofficial Equity Committee
and the members thereof, the Combined Company, New HomePlace, Waccamaw, or any
of their respective property, current and former officers, directors, agents,
employees and representatives and others including (without limitation)
professional persons retained by the Debtors; (4) asserting a setoff, right of
subrogation or recoupment of any kind against any obligation due to the any of
the Debtors, the Reorganized Debtors, the Creditors' Committee and the members
thereof, the Unofficial Equity Committee and the members thereof, the Combined
Company, New HomePlace, Waccamaw or any of their respective property, current
and former officers, directors, employees and representatives and others
including (without limitation) professional persons retained by the Debtors; and
(5) commencing or continuing any action, in any manner, in any place that does
not comply with or is inconsistent with the provisions of the Plan.
(c) Release of Collateral. Unless a particular Secured Claim is
Reinstated or a particular Secured Claim is subject to Restructuring Treatment:
(i) each holder of: (A) a Secured Claim; and/or (B) a Claim that is purportedly
secured shall on or immediately before the Effective Date: (x) turn over and
release to the relevant Debtor (or its successor, as the case may be) any and
all property of the relevant Debtor that secures or purportedly secures such
Claim; and (y) execute such documents and instruments as the Reorganized Debtors
require to evidence such claimant's release of such property; and (ii) on the
Effective Date, all claims, right, title and interest in such property shall
revert to the Reorganized Debtors (or the successor to any Debtor that does not
survive any Plan Transaction) free and clear of all Claims and Equity Interests,
including (without limitation) Liens, charges, pledges, encumbrances and/or
security interests of any kind.
(d) Applicability. Notwithstanding anything contained herein to the
contrary, none of the provisions of this Section shall be deemed applicable to
any rights, Claim, or Cause of Action, whether asserted or yet to be asserted,
against any Person or Entity other than as specifically referred to in this
Section 14.3.
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14.4 Term of Injunctions or Stays.
Unless otherwise provided, all injunctions or stays provided for in the
Reorganization Cases pursuant to section 105 or 362 of the Bankruptcy Code, or
otherwise, and in existence on the Confirmation Date, shall remain in full force
and effect until the Effective Date.
SECTION XV
RELEASES, INJUNCTION
AND WAIVER OF CLAIMS
15.1 Release of the Debtors, Debtors-in-Possession and Reorganized
Debtors.
Without limiting the provisions of Section 14.3 above, from and after
the Effective Date, the Debtors, Debtors-in-Possession, and Reorganized Debtors
are released from all Liabilities from the beginning of time except as expressly
provided in this Plan.
15.2 Release of the Released Parties.
Except as otherwise specifically provided for by this Plan, any Person
accepting any Distribution pursuant to this Plan shall be presumed conclusively
to have released the (a) Debtors, (b) Reorganized Debtors, (c) successors and
assigns of the Debtors, (d) the Creditors' Committee and the members thereof,
(e) the Unofficial Equity Committee and the members thereof, (f) New HomePlace,
(g) the Combined Company, (h) Waccamaw and (i) directors, officers, agents,
attorneys, accountants, advisors, financial advisors of the foregoing
(collectively, the "Released Parties"), and the employees of any Released Party,
from any Cause of Action based on, arising from, or in any way connected with
the same subject matter as the Claim or Equity Interest on which the
Distribution is received. The release described in the preceding sentence shall
be enforceable as a matter of contract law against any Person that accepts any
Distribution pursuant to this Plan.
15.3 Injunction.
The satisfaction, release, and discharge pursuant to Sections 14.3,
15.1 and 15.2 hereof shall also act as an injunction against any Person
commencing or continuing any action, employment of process, or act to collect,
offset, or recover any Claim or Cause of Action satisfied, released, or
discharged under this Plan to the fullest extent authorized or provided by the
Bankruptcy Code, including, without limitation, to the extent provided for or
authorized by sections 524 and 1141 thereof.
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15.4 Avoidance and Recovery Actions.
Other than with respect to any claims relating to the Maxus/National
City Financing Transactions, including, but not limited to the Maxus Secured
Claim, the National City Secured Claim, the Maxus Deficiency Claim, the National
City Deficiency Claim, as of the Effective Date, the Debtors and the Reorganized
Debtors waive the right to prosecute and release, on behalf of themselves and
their estate, any avoidance or recovery actions under sections 542, 544, 545,
547, 548, 549, 530, 531 and 533 of the Bankruptcy Code or any other Causes of
Action, or rights to payment of claims, that belong to or could have been raised
by or on behalf of the Debtors or Debtors-in-Possession or their respective
Estates, other than any such actions that were commenced on or before the
Effective Date. The Reorganized Debtors, as the successor to the Debtors, shall
retain and may prosecute any such actions (if any) that may be pending on the
Effective Date, including any right to assert any of the foregoing as a defense
or counterclaim in any such pending actions to any Claim or action, including,
but not limited to, any rights under section 502(d) of the Bankruptcy Code.
15.5 Releases of Officers, Directors and Employees.
As of the Effective Date, the Debtors, the Reorganized Debtors and the
Reorganization Trustee hereby release and are permanently enjoined from any
prosecution or attempted prosecution of any and all Causes of Action which they
have, may have or claim to have against any present or former director, officer
or employee of the Debtors; provided, however, that the foregoing shall not
operate as a waiver of or release from any Causes of Action arising out of any
express contractual obligation owing by any such director, officer or employee
to the Debtors or any reimbursement obligation of any such director, officer or
employee with respect to a loan or advance made by the Debtors to such director,
officer or employee.
SECTION XVI
RETENTION OF JURISDICTION
16.1 Retention of Jurisdiction.
The Bankruptcy Court may retain jurisdiction, and if the Bankruptcy
Court exercises its retained jurisdiction, shall have exclusive jurisdiction, of
all matters arising out of, and relating to, the Reorganization Cases and this
Plan pursuant to, and for the purposes of, sections 105(a) and 1142 of the
Bankruptcy Code and for, among other things, the following purposes:
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(i) To hear and determine pending motions (or motions
filed after the Confirmation Date pursuant to Section
12.8 of the Plan) for the assumption or rejection of
executory contracts or unexpired leases, if any are
pending (or subsequently filed pursuant to the terms
of Section 12.8 of the Plan), and the allowance of
Claims resulting therefrom;
(ii) To determine any and all adversary proceedings,
applications and contested matters (including, but
not limited to, the contested matters relating to the
Maxus/National City Financing Transactions);
(iii) To consider and rule on the compromise and settlement
of any Claim against or Cause of Action on behalf of
the Debtors or their Estates;
(iv) To ensure that Distributions to holders of Allowed
Claims and Allowed Class 7 Equity Interests are
accomplished as provided herein;
(v) To hear and determine any timely objections to
Administrative Expense Claims or to proofs of Claim
and Equity Interests filed, both before and after the
Confirmation Date, including any objections to the
classification of any Claim or Equity Interest, and
to Allow or Disallow any Disputed Claim or Disputed
Equity Interest, in whole or in part;
(vi) To hear and determine any and all applications for
the allowance of Professional Fees;
(vii) To enter and implement such orders as may be
appropriate in the event the Confirmation Order is
for any reason stayed, revoked, modified, or vacated;
(viii) To issue such orders in aid of execution of this
Plan, in accordance with section 1142 of the
Bankruptcy Code;
(ix) To consider any modifications of this Plan, to cure
any defect or omission, or reconcile any
inconsistency in the Plan, including any exhibit
thereto, or in any order of the Bankruptcy Court,
including the Confirmation Order, as may be necessary
to carry out the purposes and intent of the Plan and
to implement and effectuate the Plan;
(x) To hear and determine all applications for awards of
compensation for services rendered and reimbursement
of expenses relating to implementation and
effectuation of this Plan;
(xi) To hear and determine disputes arising in connection
with the interpretation, implementation or
enforcement of this Plan, including, but not limited
to, disputes relating to the Merger Transactions, the
Cash Election Transactions, and the other Plan
Transactions;
(xii) To hear and determine matters concerning state, local
and federal taxes in accordance with sections 346,
505 and 1146 of the Bankruptcy Code;
(xiii) To compel the conveyance of property and other
performance contemplated under this Plan and
documents executed in connection herewith;
(xiv) To enforce remedies upon any default under the Plan;
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(xv) To enforce, interpret and determine any disputes
arising in connection with any orders, stipulations,
judgments and rulings entered in connection with the
Reorganization Cases (whether or not the
Reorganization Cases have been closed);
(xvi) To resolve any cases, controversies, suits or
disputes that may arise in connection with the
consummation, interpretation or enforcement of this
Plan, or any Person's or Entity's obligations
incurred in connection herewith;
(xvii) To determine any other matters that may arise in
connection with or relate to the Plan, the Disclosure
Statement, the Confirmation Order or any contract,
instrument, release, indenture or other agreement or
document created in connection with the Plan
(including, but not limited to, the Plan Supplement)
or the Disclosure Statement, including the Merger
Agreement;
(xviii) To issue injunctions, enter and implement other
orders or take such other actions as may be necessary
or appropriate to restrain interference by any Person
or Entity with the occurrence of the Effective Date
or enforcement of the Plan;
(xix) To determine any other matters that may arise in
connection with or relate to the Plan, the Disclosure
Statement, or the Confirmation Order; and
(xx) To issue such orders as may be necessary or
appropriate in aid of Confirmation and/or to
facilitate consummation of the Plan;
(xxi) To determine such other matters as may be provided
for in the Confirmation Order or other orders of the
Bankruptcy Court as may be authorized under the
provisions of the Bankruptcy Code or any other
applicable law;
(xxii) To hear and determine (a) all motions, applications,
adversary proceedings, and contested and litigated
matters pending on the Effective Date, and (b) all
claims by or against the Debtors arising under the
Bankruptcy Code or non-bankruptcy law, if made
applicable by the Bankruptcy Code, including claims
to avoid fraudulent transfers under section 548 of
the Bankruptcy Code, whether such claims are
commenced before or after the Effective Date; and
(xxiii) To hear and determine pending motions for the
assumption or rejection of executory contracts or
unexpired leases pursuant to Section 12.8 of the
Plan, if any, and the allowance of Claims resulting
therefrom.
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16.2 Modification of the Plan.
(a) Subject to Section 18.8 hereof, the Debtors may alter, amend, or
modify the Plan or any Exhibits thereto under section 1127(a) of the Bankruptcy
Code at any time prior to confirmation. The Debtors shall provide
parties-in-interest with notice of such amendments or modifications as may be
required by the Bankruptcy Rules or order of the Bankruptcy Court and shall, in
any event, provide such notice to counsel for the Creditors' Committee and
counsel for Waccamaw.
(b) After the Confirmation Date and prior to substantial consummation
(as defined in section 1101(2) of the Bankruptcy Code) of the Plan, the Debtors
or the Reorganized Debtors, as the case may be, may, under section 1127(b) of
the Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or to reconcile any inconsistencies in the Plan, the
Disclosure Statement approved with respect to the Plan, or the Confirmation
Order, and such matters as may be necessary to carry out the purpose and effect
of the Plan so long as such proceedings do not adversely affect the treatment of
holders of Claims or holders of Equity Interests under the Plan; provided,
however, that prior notice of such proceedings shall be served in accordance
with the Bankruptcy Rules or an order of the Bankruptcy Court.
SECTION XVII
BAR DATE FOR NON-ORDINARY COURSE ADMINISTRATIVE EXPENSE CLAIMS
17.1 Establishing Deadline By Which Non-Ordinary Course Administrative
Expense Claims Must Be Filed Against the Debtors.
Any Person or Entity claiming or asserting an Administrative Expense
Claim against one or more of the Debtors, including any Claims arising or deemed
to have arisen against any member of the HomePlace Group after the Petition Date
and prior to the Confirmation Date, must file a proof of Administrative Expense
Claim so that such Proof of Administrative Expense Claim is received on or
before the Administrative Bar Date by the Claims Agent at the following address:
Meade Monger & Consultants Corporation
By regular mail at:
P.O. Box 780329
Dallas, Texas 75378
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By hand or overnight mail at:
5735 Pineland Drive, Suite 227
Dallas, Texas 75231
Attention: Diane Peppers
Notwithstanding the foregoing, the following Persons and Entities are not
required to file a proof of Administrative Expense Claim on or before the
Administrative Bar Date:
(a) any Person or Entity that asserts an Administration
Expense Claim against a Debtor and that has already
filed a proof of such Administrative Expense Claim;
(c) any Person or Entity whose Administrative Expense
Claim has been Allowed by a Final Order on or before
the Administrative Bar Date;
(d) holders of Administrative Expense Claims to the
extent arising from or incurred in the ordinary
course of the HomePlace Group's business; and
(e) any professionals retained in these Reorganization
Cases for Professional Fees.
17.2 Form for Proofs of Administrative Expense Claim.
Each proof of Administrative Expense Claim must (i) describe
the transaction or agreement giving rise or relating to the Administrative
Expense Claim; (ii) set forth the name of any guarantor that has guaranteed the
Administrative Expense Claim; (iii) describe any collateral and its estimated
value, if applicable, granted to the creditor in respect of the Administrative
Expense Claim; and (iv) include copies of any invoices, statements or other
documents evidencing the amount and/or basis of the Administrative Expense
Claim.
17.3 Consequences for Failing Timely to File Proof of Administrative
Expense Claims.
Any Person or Entity that is required timely to file a proof
of Administrative Expense Claim in the form, time and manner specified by
Section 17 of the Plan who fails to do so shall be forever barred from asserting
such Administrative Expense Claims against the Debtors, the Reorganized Debtors,
the Reorganization Trustee or any of their property and such Administrative
Expense Claims shall not be enforceable against the Debtors, the Reorganized
Debtors, the Reorganization Trustee or any of their property, except as
otherwise ordered by the Bankruptcy Court.
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SECTION XVIII
MISCELLANEOUS PROVISIONS
18.1 Payment of Statutory Fees.
All fees payable pursuant to section 1930, title 28, United States
Code, shall be paid on the Effective Date.
18.2 Severability of Plan Provisions.
If, prior to the Confirmation Date, any term or provision of this Plan
is held by the Bankruptcy Court to be invalid, void or unenforceable, the
Bankruptcy Court, with the consent of the Debtors and subject to the provisions
of Section 18.8 hereof, shall have the power to interpret, modify or delete such
term or provision (or portions thereof) to make it valid, enforceable or
confirmable to the maximum extent practicable, consistent with the original
purpose of the term or provision held to be invalid, void or unenforceable, and
such term or provision shall then be applicable as interpreted, modified or
deleted. Notwithstanding any such interpretation, modification or deletion, the
remainder of the terms and provisions of this Plan shall remain in full force
and effect and shall in no way be affected, impaired or invalidated by such
interpretation, modification or deletion. The Confirmation Order shall
constitute a judicial determination and shall provide that each term and
provision, as it may have been interpreted, modified or deleted in accordance
with the foregoing, is valid and enforceable pursuant to its terms.
18.3 Governing Law.
Except to the extent that the Bankruptcy Code or other federal law is
applicable, or to the extent a schedule or exhibit hereto provides otherwise,
the rights, duties and obligations arising under this Plan, and the instruments,
agreements and other documents executed in connection with the Plan, shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of Delaware.
18.4 Notices.
All notices, requests and demands to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when actually delivered
or, in the case of notice by facsimile transmission, when received and
telephonically confirmed, addressed as follows:
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To the Debtors:
HomePlace Stores, Inc.
7887 Hub Parkway
Valley View, Ohio 44125
Attn: Mr. Patrick Fodale
Telephone: (216) 328-9500
Facsimile: (216) 328-0707
with a copy to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005-1413
Attn: Luc A. Despins, Esq.
Telephone: (212) 530-5000
Facsimile : (212) 530-5219
To Waccamaw and the Combined Company:
Waccamaw Corporation
3200 Pottery Drive
Myrtle Beach, SC 29577
Attn: Mr. Gregory K. Johnson
Telephone: (843) 236-4606
Facsimile: (843) 236-4599
with a copy to:
Parker, Poe, Adams & Bernstein LLP
2500 Charlotte Plaza
201 South College Street
Charlotte, N.C. 28244
Attn: Fred C. Thompson, Jr.
Telephone: (704) 372-9000
Facsimile: (704) 334-4706
To The Creditors' Committee:
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NationsBanc Montgomery Securities
231 South LaSalle Street
Chicago, Illinois 60697
Attn: Moira A. Cary
Telephone: (312) 828-7806
Facsimile: (312) 828-5423
And
Zwilling J.A. Henckels, Inc.
171 Saw Mill River Road
Hawthorne, New York 10532
Attn: John Henckel
Telephone: (914) 749-3415
Facsimile: (914) 747-1850
with a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Attn: David G. Heiman, Esq.
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
18.5 Further Documents and Action.
The Debtors and Reorganized Debtors shall execute, and are authorized
to file with the Bankruptcy Court, such agreements and other documents, take or
cause to be taken such action, and deliver such documents or information as may
be necessary or appropriate to effect and further evidence the terms and
conditions of the Plan and to consummate the transactions and transfers
contemplated by the Plan. The Debtors and the Reorganized Debtors, and all other
parties, shall execute any and all documents and instruments that must be
executed under or in connection with this Plan in order to implement the terms
of the Plan or to effectuate the Distributions under this Plan, provided that
such documents and instruments are reasonably acceptable to such party or
parties.
18.6 Plan Supplement.
Forms of the following documents shall be contained in the Plan
Supplement and filed with the Clerk of the Bankruptcy Court at least seven (7)
days prior to the Voting Deadline: the Assumption
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Schedule, the Amended Certificate of Incorporation, the Amended Bylaws, the
Subsidiaries Amended Bylaws, the Subsidiaries Amended Certificates of
Incorporation, the New Preferred Warrants, the Exit Facility Commitment Letter,
the New Waccamaw Warrants, the list of the initial members of the Board of
Directors, and the Reincorporation Merger Agreement. Upon its filing with the
Bankruptcy Court, the Plan Supplement may be inspected in the office of the
Clerk of the Bankruptcy Court during normal Bankruptcy Court hours. Holders of
Claims or Equity Interests may obtain a copy of the Plan Supplement upon written
request to the Debtors in accordance with Section 18.4 of the Plan.
18.7 Plan Controls.
To the extent the Plan is inconsistent with the Disclosure Statement,
the provisions of the Plan shall be controlling.
18.8 Reservation of Rights.
If the Plan is not confirmed by a Final Order, or if the Plan is
confirmed and does not become effective, the rights of all parties in interest
in the Reorganization Cases are and will be reserved in full. Any concessions or
settlements reflected herein, if any, are made for purposes of the Plan only,
and if the Plan does not become effective, no party in interest in the
Reorganization Cases shall be bound or deemed prejudiced by any such concession
or settlement. With respect to all matters relating to the Merger Agreement
(including with respect to any amendments, modifications or revocations of this
Plan), the respective rights and obligations of and between Waccamaw and the
Debtors shall be governed by the terms of the Merger Agreement.
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18.9 Tax Reporting and Compliance.
In connection with the Plan and all instruments issued in connection
therewith and Distributions thereon, the Debtors, the Reorganized Debtors,
including the Combined Company and the Reorganization Trustee, shall comply with
all withholding and reporting requirements imposed by any federal, state, local
or foreign taxing authority and all Distributions hereunder shall be subject to
any such withholding and reporting requirements. No holder of an Allowed Claim
against the Debtors shall effectuate any withholding with respect to the
cancellation or satisfaction of such Allowed Claim under this Plan. The Combined
Company is hereby authorized, on behalf of each of the Debtors, to request an
expedited determination of taxes under section 505(b) of the Bankruptcy Code for
all taxable periods of the Debtors ending after the Petition Date through, and
including, the Effective Date of the Plan.
18.10 Waccamaw as Party-in-Interest.
The Debtors agree that Waccamaw shall be deemed to be a
party-in-interest in the Reorganization Cases accorded all the rights ascribed
to parties-in-interest in section 1109 of the Bankruptcy Code.
18.11 Fees and Expenses of Counsel for Unofficial Equity Committee and
Unofficial Equity Subcommittee.
Subject to the submission of summaries of the fees and expenses to the
Combined Company and the Reorganization Trustee for their approval, (a) the
reasonable professional fees and expenses of the Unofficial Equity Committee for
its outside counsel during the course of these Reorganization Cases shall be an
Allowed Administrative Expense Claim of the Combined Company in an amount not to
exceed, in the aggregate, $80,000 and (b) the reasonable professional fees and
expenses of the Unofficial Equity Subcommittee for its outside counsel during
the course of these Reorganization Cases shall be an Allowed Administrative
Expense Claim of the Combined Company in an amount not to exceed, in the
aggregate, $15,000. Within fifteen Business Days after receipt of the written
summaries, the Combined Company and/or the Reorganization Trustee must file a
written objection with the Bankruptcy Court if either objects to the
reasonableness of the fees and/or expenses of the Unofficial Equity Committee or
the Unofficial Equity Subcommittee. If either the Combined Company or the
Reorganization Trustee object to the reasonableness of the fees and/or expenses
of the Unofficial Equity Committee or the Unofficial Equity Subcommittee, then
such party shall submit such dispute to the Bankruptcy Court for resolution. The
payment of the fees and expenses contemplated in this Section 18.11 of the Plan
shall be payable upon the approval of the fees and expenses by the Bankruptcy
Court or, if no objection is interposed by the Combined Company or the
Reorganization Trustee, within twenty Business Days after receipt of the written
summaries.
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18.12 Binding Effect.
The rights, benefits and obligations of any Entity named or referred to
in the Plan, or whose actions may be required to effectuate the terms of the
Plan shall be binding on, and shall inure to the benefit of, any heir, executor,
administrator, successor or assign of such Entity (including, but not limited
to, any trustee appointed for the Debtors under Chapters 7 or 11 of the
Bankruptcy Code). The Confirmation Order shall provide that the terms and
provisions of the Plan and the Confirmation Order shall survive and remain
effective after entry of any order which may be entered converting any of the
Debtors' Reorganization Cases to a case under Chapter 7 of the Bankruptcy Code,
and the terms and provisions of the Plan shall continue to be effective in this
or any superseding case under the Bankruptcy Code.
[END OF TEXT]
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Plan as of
the date first above written.
HOMEPLACE STORES, INC.
By: /s/ Larry Pollock
-------------------------------------
Name: Larry Pollock
Title: President
HOMEPLACE STORES TWO, INC.
By: /s/ Larry Pollock
-------------------------------------
Name: Larry Pollock
Title: President
HOMEPLACE MANAGEMENT, INC.,
By: /s/ Larry Pollock
-------------------------------------
Name: Larry Pollock
Title: President
HOMEPLACE HOLDINGS, INC.,
By: /s/ Larry Pollock
-------------------------------------
Name: Larry Pollock
Title: President
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SCHEDULE A
PRINCIPAL TERMS OF RESTRUCTURED NOTE
SECURED CLASS 3 -- NATIONAL CITY SECURED CLAIM
Type of Treatment: Restructuring Treatment
Effective Date
Principal Amount: The amount of the National City Secured Claim as
determined by the Bankruptcy Court in the connection
with the contested matter pending before the
Bankruptcy Court relating to the Maxus/National City
Financing Transactions.
Final Maturity: The fifth (5th) anniversary of the Effective Date.
Interest Rate: The non-default contract rate set forth in the
Maxus/National City Financing Transaction.
Interest Payment: Quarterly, commencing on September 30, 1999.
Principal Repayment: The full principal amount of such Restructured Note
shall be payable on maturity as a balloon payment.
Treatment of
National City
Deficiency Claim: Classified as an Unsecured Claim in Class 5 and
treated in accordance with Section 5.2.5 of the Plan.
Maker: Combined Company.
<PAGE> 91
PRINCIPAL TERMS OF RESTRUCTURED NOTE
SECURED CLASS 4 -- MAXUS SECURED CLAIM
Type of Treatment: Restructuring Treatment
Effective Date
Principal Amount: The amount of the National City Secured Claim as
determined by the Bankruptcy Court in the connection
with the contested matter pending before the
Bankruptcy Court relating to the Maxus/National City
Financing Transactions.
Final Maturity: The fifth (5th) anniversary of the Effective Date.
Interest Rate: The non-default contract rate set forth in the
Maxus/National City Financing Transaction.
Interest Payment: Quarterly, commencing on September 30, 1999.
Principal Repayment: The full principal amount of such Restructured Note
shall be payable on maturity as a balloon payment.
Treatment of
National City
Deficiency Claim: Classified as an Unsecured Claim in Class 5 and
treated in accordance with Section 5.2.5 of the Plan.
Maker: Combined Company.
